Fick v. Crook

27 Colo. 429 | Colo. | 1900

Rehearing

On Petition for Rehearing.

Per Curiam.

On petition for rehearing counsel for appellant strenuously urge that the system of shorthand now employed in'making notes of the proceedings in court renders it unnecessary to rely upon the fugitive recollection of the parties to an action, as to what may actually have occurred at a trial with respect to those matters which only become a part of the record by virtue of being incorporated in a bill of exceptions, and therefore the reason for a strict rule regarding amendments of the character under consideration no longer exists.

• The difference in the method of keeping notes of court proceedings from that formerly in vogue has not changed the principle controlling the determination of the question presented. Except for the purpose of permitting admissible amendments, the court or judge loses authority or jurisdiction to add to, or- change, a bill of exceptions after the time has elapsed within which it must be tendered. First Nat. Bank v. Wilder, 100 Fed. Rep. 223; Mich. Bank v. Eldred, 143 U. S. 293 ; Honey v. Chicago Ry. Co., 82 Fed. Rep. 773; Rollins v. Board of Gunnison Co., 78 Fed. 741; Case v. Hall, 94 Fed. Rep. 300.

Petition for rehearing denied.

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Lead Opinion

Mr. Justice Gabbert

delivered the opinion of the court.

The matters incorporated in the supplemental bill of exceptions are not part of the record proper; therefore, unless preserved by the former, there is nothing before us to consider. An amended or supplemental bill contemplates that it contains something to supply defects in, or in aid of, the original. Its proper office is to perfect that which is imperfectly done, but not to originate something entirely new. The original bill contained none of the matters in the supplemental one, either in whole or in part, hence, they do not amend or complete anything in the original bill, but partially stated therein. They were not omitted from the original by mistake, or intended to be incorporated therein. In the present state of the record, the supplemental bill is, in effect, a new one. If appellant had never attempted to obtain a bill of exceptions, he would be in no different position with respect to the supplemental one from what he now is. We are, therefore, of the opinion that what is contained in the supplemental bill cannot be considered as an admissible amendment of the original. The time for tendering and filing the latter has expired, and the motion to strike must be sustained. Hayne’s New Trial and Appeal, § 160, p. 477; Martin v. St. Louis, I. M. & S. Co., 53 Ark. 250.

There being nothing presented for determination by the appeal, the judgment of the lower court is affirmed.

Affirmed.