83 P. 372 | Wyo. | 1905
This action was brought by the plaintiff in error, against the defendant in error in the District Court of Natrona County for the recovery of a reward. The cause was tried to the court and judgment was entered for the defendant. The errors assigned cannot be considered unless the evidence is in the record by a proper bill of exceptions. The bill of exceptions was signed by the trial judge and filed with the clerk of the District Court on May 13, 1905. The petition in error was filed in this court on May 17th, but the original papers containing the bill of exceptions were not filed here until October 21st. On August 31st counsel for defendant filed a motion to strike the bill of exceptions from the files, for the reason that the trial judge had not certified that it contained all the evidence given in the cause. On September 13th counsel for plaintiff filed a motion suggesting a diminution of the record and asking permission to withdraw the bill of exceptions for the purpose of having the certificate of the trial judge amended. The propriety of granting the request to withdraw the bill is the first question that requires consideration.
Nowhere does it appear in the bill of exceptions or the certificate of the trial judge attached thereto, that the bill contains all the evidence given in the cause. This defect raises the presumption that the bill is not complete and that portions of the evidence have been omitted. Where the
In the case of Seig v. Long et al., 72 Ind., 18, appellant sought to amend a bill of exceptions, after the close of the term in which the bill was signed and filed, by incorporating therein the clause, “and this is all the evidence given in the cause.” Elliott, Judge, rendering the opinion, said: “There could be, in the case of such an omission as that described, nothing by which to amend, for at no time was any record made, nor, in truth, was any intended to be made, of the clause now sought to be declared part of the bill. The right to direct any amendment, of the general character of that proposed by appellant, to a bill of exceptions, after the close of a term, is a very doubtful one, if, indeed, it exists at all, and certainly such an amendment as that here insisted upon cannot be allowed.” In Kirby v. Bowland, 69 Ind., 290, it was said: “A court may record a fact nunc pro lunc; that is, if the fact existed then, it may record it now; but it cannot record a fact now which did not exist then; and there must be some record, note, entry or minute of some kind on which to base it, -connecting it with the case.” In Illinois the following rule is announced relating to the amendment of a bill of exceptions as part of a record after term: “The amendment must be shown by the production of some note or memorandum from the records, or quasi records, of the court, or by the judge’s minutes, or from some entry in some book required to be kept by law, or in the papers, or on file in the cause. It cannot be determined from the memory of witnesses or the recollection of the judge himself.” (Tynan v. Weinhard, 153 Ill., 598; Supreme Lodge, Knights and Ladies of Glenwood, v. Annie
Since the bill of exceptions' when signed and filed becomes a part of the record, it can only be corrected or amended by the court where such record was made. No such power is vested in the appellate court. (Warner v. Hutchins, 48 Neb., 672.) Neither will an appellate court permit a bill of exceptions to be withdrawn for the purpose of amendment or correction as a matter of course; and especially is this true where it appears that the failure to incorporate into the bill of exceptions, or the certificate attached thereto, all that is necessary to make it a true bill, is due to the laches of the party seeking relief. (MacFarland v. West Side Improvement Association, 47 Neb., 661.) The practice is likewise well settled that when and under what circumstances a bill of exceptions will be sent back to the trial court for correction or amendment are matters entirely within the discretion of the appellate court. Counsel for plaintiff in error should remember that this 'is their own bill of exceptions, and that it was their duty to present to the trial judge for allowance a true bill. The certificate for the signature of the trial judge is as much a part of the bill as the evidence, and it is the duty of counsel who present the bill to see that the certificate is correct. While it is true that a bill of exceptions will usually be returned for amendment or correction when the mistake is due to some act of the defendant in error or his counsel, it is equally well settled that it will not ordinarily be returned when the mistake is due to the laches of the plaintiff in error or his counsel, though upon timely application and satisfactory
The motion of plaintiff to have the bill of exceptions returned to the trial court for amendment is denied. The motion of defendant to strike the bill of exceptions from the files is sustained. The evidence not having been properly carried into the record, there is no question presented for our consideration. The appeal is, therefore, dismissed.