158 P. 267 | Wyo. | 1916
These cases being appeals by different defendants in the same action, by agreement of the parties were consolidated and submitted to this court on the same record. The only error assigned in the petition in error in either case is the overruling of the separate motions of the plaintiffs in error for a new trial. There is no bill of exceptions which can be considered, and the only way a motion for a new trial can become a part of the record in this court is by incorporating it in a bill of exceptions. (Freeburgh v. Lamoureaux, et al., 12-Wyo. 41, 73 Pac. 545.) There is filed in this court a bundle of papers endorsed “Bill of Exceptions,"’ but there is nothing whatever showing or tending to show that it was ever filed in the office of the clerk of the district court, or was ever presented there for filing, or was ever in his possession so as to become a part of the record in that court. It bears no filing mark of the clerk of that court, nor is it in any form or manner certified by the clerk of said court to be a part of the record in the case. In addition to that there is another bundle of papers certified to' this court by the clerk of the district court under the se.al of the court certifying that said papers “comprising pages numbered 1 to 93 inclusive, are all the papers filed and of record in the office of the clerk of the district court” in said case. The purported bill of exceptions, containing 237 pages, is not attached to or in any way referred to or identified in the papers so certified.
This court has always been quite liberal in considering imperfect records. In Commissioners v. Shafner, 10 Wyo. 181, where a bill of exceptions was stamped filed at a certain_ date, but the endorsement was not signed by the clerk, but the papers including the bill were duly certified by the clerk
In view of the increasing number of illy prepared, defective and imperfect records being filed in this court, it is not out of place to here suggest to the members of the bar that a bill of exceptions becomes a part of the record by being filed in the office of the clerk of the district court after
Proceeding'in error dismissed. ■
ON MOTION TO REINSTATE.
The proceedings in error in these cases were dismissed June 29, 1916, on account of the defective record presented to this court. (158 Pac. 267.) Counsel for plaintiffs in error has filed a motion, supported by affidavits, for a vacation of the order of dismissal and for a reinstatement of the cases on the docket; and counsel for defendant in error have filed their motion to strike the motion of plaintiffs in error from the files. Both motions have been submitted together.
Counsel for plaintiffs in error does not dispute the insufficiency of the record, as stated in the opinion, but seeks to excuse the imperfection and to be allowed now to withdraw the record and have it amended; and states in his affidavit that he sent the bill of exceptions to the clerk of the district court with directions to file it; that he was called away from home and was necessarily absent for several weeks, and did not have opportunity to see and examine the record before it was filed in this court; that he relied upon the clerk of the district court to file and properly certify all of the original
The motion to strike plaintiffs’ motion from the files is based upon the ground that the application to vacate the order of dismissal and reinstate the cases should be by petition for rehearing and not by motion. We do not think that point well taken. (Cronkhite v. Bothwell, 3 Wyo. 736, 30 Pac. 4923 Gramm v. Fisher, 4 Wyo. 1, 31 Pac. 767, in which cases like motions were entertained.) As above stated, it is not claimed that there was error in dismissing the proceedings upon the record presented; and counsel do not ask for a rehearing on that question, but seeks to have the cases reinstated and be permitted to amend the record. It differs from a case in which it is contended that the order of dismissal was erroneous. A motion to strike a motion is not the proper practice. (Reid v. Fillmore, 12 Wyo. 72, 73 Pac. 849.) The motion to strike plaintiffs’ motion from the files is denied.
This court can consider and determine cases brought to it by proceedings in error, only upon the record as made in the’ trial court, and cannot assume that that record is other than as certified to be such record. It is true that it is the duty of the clerk of the district court to properly file the papers in a case and when required to do so to properly authenticate and certify the record to this court; but it is likewise the duty of an appellant to see to it that the record is in proper form and duly authenticated. In the present case, counsel unquestionably had the purported bill of exceptions before him when he prepared his brief, and a casual examination