Farrar v. Yankton Land & Investment Co.

23 S.D. 525 | S.D. | 1909

HANEY, 'P. .J.

Respondents move to strike from the record what purports to be a bill of exceptions or.statement of the case, for the reason, among others, that the statement as proposed and allowed was simply the stenographer’s transcript of his notes of the proceedings with an assignment of errors appended thereto. The instrument purporting to be a statement of the case is simply the stenographer’s transcript of the proceedings with all the redundant, irrelevant, and immaterial matter usually found in such transripts. It is replete with such useless matter as the following: “By Mr. Wood: Q. Where do you reside, Mr. Tripp? . A. At Yankton, S. D. Q. What is your business or profession? A. Engaged in the practice of law. Q. ITow long have you resided there ? A. I have resided at Yankton over 20 years. Q. .Of what firm are you a member? A. Member of the firm of Gamble, Tripp & Holman — Robert J. Gamble, Robert B. Tripp, and John Holman. Q. Are you acquainted with the plaintiffs, Farrar & Jepsen? A. Yes, sir. Q. Now, was there a time, Mr. Tripp, during last year, when Mr. Farrar, together with certain other parties to this action, were present in your office? A. Not last year; this year. Q. About what date was it ? A. I would sajr it was about the middle or about the 18th or 19th of January of this year. Q. -And was Mr. Alexander, a witness, here, was he present at that time? A. Yes, sir. Q. Will you state whether at -that time you had any conversation with Mr. Farrar and these other parties, or whether a conversation was had in your presence relative to1 .the matter now- in litigation ? A. I would say that this particular ca:se was not under discussion. Q. Did the conversation .have reference to the alleged cause of action or the transaction relative to the purchase and sale of the Jay ranch? A. Yes, sir; more particularly with reference to the purchase of the Jay ranch, and how much had been paid. Q. Give that conversation as you’remember it.”

“No particular form of exception is required, but when the exception is to_ the verdict or decision, upon the ground of the insufficiency of the evidence to justify it, the objection must specify the particulars in which such evidence is alleged to be insufficient. * * * The objection must be stated with so mucli of the' evidence of other matter as is necessary to explain it, and no more.' Only the substance'of the reporter’s notes of the evidence shall be stated.” Rev. Code Civ. Proc. § 294. “It is the duty of’the j'udgej in settling .a bill to’strike out of it--all-redundant and’useless-matter so that- the-'exceptions-may-be presented,as: briefly as possible.” Id. § 296. “It is the duty-of-the judge am settling the statement to strike out of it all redundant' and useless matter, and to make the statement truly represent the case, notwithstanding the assent of the parties to such redundant or useless matter, or to any inaccurate statement.” Id. § 303. In this calse no attempt was made to comply with the statute, notwithstanding the attention of counsel for appellants and of the court was called thereto' by timely and proper objections. It readily will be conceded tb¡at the trial court in the exercise of a sound legal discretion should be allowed considerable latitude in determining what is necessary to properly present the exceptions in each particular case, but this does not justify an entire disregard of the requirements of the statute. Counsel for appellants insists that everything contained in the stenographer’s transcript should be incorporated into the bill of exceptions or statement, leaving appellant to print so much thereof as he may deem necessary, a practice which has frequently been condemned by this court, and which usually -devolves upon its judges the labor of reading the entire transcript with all its redundant, irrelevant, and useless matter in order to decide upon the issues raised by an additional abstract. Whatever may be the relative merits of these different methjods of procedure, whether the labor of eliminating redundant and useless matter should be performed by the judges of this court or by the trial judges, need not be considered. It is enough that the duty has been imposed by law. upon the latter, and its proper performance should be insisted upon so long as the statute remains unchanged. Having .several times heretofore suggested tjo the profession that the law relating to this subject should not be ignored, and, as timely -objection was interposed to the method pursued, this is a case in which, effect should be given- to a long-established and, as we think, highly commendable, rule of procedure.

The motion to’strike is 'granted.

SMITH, J., dissenting.