6 Wyo. 327 | Wyo. | 1896
John B. Oakie, one of the defendants in error, files his motion to strike from the record the bill of exceptions.
The bill was not presented for allowance until the first day of the next term, and counsel for the motion to strike the bill from the record contend that by the terms of the order allowing time for such presentation of the bill, the first day of the next term must be excluded, as the time allowed therefor was up to but not including the first day of the term. It has always been the approved practice under this statute to have the order granting time for the presentation of the bill to read “up to and including the first day of the next succeeding term of the court,” but this custom was not followed, as the order gives time “ until ” the first day of the next term. The decision of this ground of the motion rests upon the construction to be given to the word “until,” in the order allowing time for the preparation and presentation of the bill, and whether or not it includes or excludes the first day of the next term succeeding the entry of the order.
The weight of authority is decidedly in favor of the position that the word “until,” used in a connection similar to its use in the order of the court in the case at bar, giving time within which to present the bill of exceptions, includes the last day named, and we think our statutory rule for computing the time within which an act is to be done, when required by law, directing that the last day mentioned shall be included, is applicable and settles the question. The bill was therefore presented in apt time.
2. Another ground for the motion to strike the bill from the record presents a more perplexing question. The bill was allowed, signed, and made a part of the record, on the first day of the term of the Natrona district court, following the entry of the order allowing time for the presentation of the bill for settlement, by Hon. J. H. Hayford, who was the successor of Judge Blake, the trial judge, and the one who overruled the motion for a new trial, and granted time within which to present the bill, the latter having died some time previous to the presentation of the bill. It is vigorously asserted that neither
In the case of Newton v. Boodle, 54 Eng. Com. Law, 795, it was held that where a .party has lost the benefit of a bill, of exceptions tendered to the ruling of a judge at nisi prius or at the assizes, by the death of the judge, and without any default on his own part, it is not competent to another judge of the court out of which the record issues to seal the bill of exceptions, and in such a case, where the circumstances warrant it, the court will allow the party to move for a new trial, notwithstanding the proper time for doing so has elapsed. But the rule was granted in order to see if there was evidence to fix one of the defendants on not guilty, as borne out by the notes of the chief justice of the court, who died before the bill was perfected, and it was decided that there was no evidence to connect such defendant with any of the proceedings in trespass, and this was decided upon the notes of the evidence, and the rule was discharged. This ruling and examination into the notes of the judge, was tantamount to reviewing the cause on its merits, warranted perhaps under the circumstances, and is apparently a better practice than to leave the party to obtain his new trial in the court below, as a matter of right and of course, owing to the death of the trial judge without certifying to the bill, for it is manifest that such a course would be a hardship to the prevailing party in the court below, to force him to retry the cause, if there were no reasons for doing so. By granting a new trial, the defendant in error would be put to the time and expense of a retrial of the cause, and this should not be done, unless it appears by an inspection of the record and a re-examination of the issues and the evidence that prejudicial error was committed by the trial
In this case, the parties opposing the bill stated in writing that the bill was true, and the order of the court allowing the bill recites such admission. The evidence and the details of the trial appear to be preserved by the notes of the official stenographer, and although these are made prima facie correct by statute, they are not sufficient without the authentication of the court or judge allowing the bill. (Johns v. Adams Bros., 2 Wyo., 194, 197.) We think that as the evidence and exceptions were thus preserved by the stenographer, and as the opposing parties admitted the correctness of the bill, the court to whom the bill was presented within the time given by the order allowing time for its preparation and presentation was warranted in authenticating the bill. In these busy days it would be impossible for a trial
Eepeating the quotation from People v. Williams, 91 Ill., 91, used in the case of Stirling v. Wagner, supra: “ It is, however, contended that so long a time has elapsed since the trial of the cause that it is impossible for the judge to determine what the evidence was on the trial. We do not apprehend there can be much trouble on this score. It is set up in the petition and not denied in the answer that a full phonographic report of all the evidence offered on the trial was made at the time by skilled reporters. If this be true, we can not see how there can be much room for controversy in regard to the evidence.” These expressions relate to the preservation of evidence taken in a chancery case in open court, instead of by the master, but the principle is the same as in other Illinois cases, particularly that of People v. Gary, supra, holding that the trial judge may resort to such means when his memory can not be relied upon, in determining the truth of the bill of exceptions, that is, either by taking as true the notes of the stenographer, or by rehearing the witnesses where the testimony has not been preserved. We do not decide whether this latter method can be resorted to, as the court below re-examined no witnesses, but evidently relied upon the notes of the stenographer, and the written admission of the adverse parties, to establish the truth of the bill, and we think his action was warranted under the circumstances of the case, as there was no dis
3. The remaining ground of the motion is that the bill of exceptions does not purport to show all the evidence admitted at the trial of the cause. It is but fair to say that counsel inserted this ground owing to the action of the court in requesting an argument upon that point. We can not say that it is necessary to have all the evidence before us at this stage of the proceedings. That matter may only be determined by an inspection of the bill and an examination of the assignment of errors. So far as we can ascertain from the certificate to the bill, we think it may be gathered therefrom that all of the evidence is in the bill. However, if it should hereafter appear that the bill has vices which will invalidate it, we can dispose of that matter upon the hearing upon the merits.
The motion to strike the bill of exceptions from the record is overruled.