81 P. 97 | Wyo. | 1905
This case is before this court at this time upon the motion' of plaintiff in error for leave to withdraw the record for the purpose of applying to the District Court to have the bill of exceptions amended.
The case was appealed to this court in August, 1901, and was submitted upon the merits and taken under advisement upon plaintiff’s brief, defendants having failed to file briefs, April 26, 1902. Before it was decided and on January 10, 1903, the defendant, Lamoureux, obtained an order permitting him to file a motion to strike the bill of exceptions from the record for the reason that it failed to state the ruling of the District Court upon the motion for a new trial, or that any exception was taken to the ruling upon that motion. This motion to strike the bill of exceptions was argued and submitted January 27, 1903, and on August 20, 1903, an opinion was handed down sustaining the motion and striking the bill of exceptions from the record. (73 Pac., 545.) Nothing further was done in the case until April 18, 1905, when the case was called up by the defendant; whereupon, plaintiff asked and obtained permission to file a motion for leave to withdraw the record for the purpose of applying to the District Court to have the bill of exceptions amended so as to show that the motion for a new trial had been denied, and an exception taken to that ruling by the plaintiff. The motion for leave to withdraw the record was filed May 1,
Ordinarily an application of this kind will not he denied when it is timely made and where, as in this case,, it is apparent that the bill of exceptions is defective and does not contain something that it should contain; and in this case it is made to appear by the affidavits filed in support of the motion that one page of the hill as prepared by counsel and reciting the ruling on the motion for a new trial and an exception to that ruling was not in the bill as filed in the District Court.
But the attention of counsel for plaintiff was called to this defect in the bill when the motion to strike was filed, and he should have applied for leave to withdraw the record for the purpose of having the bill amended within a reasonable time thereafter; certainly, without delay after the decision of this court sustaining the motion to strike. 'It is insisted by counsel for plaintiff that because numerous extensions of time for filing briefs by defendant had been granted, this should, in some degree at least, excuse the delay in making the application for leave to withdraw the record. That matter, as we understand it, was a courtesy extended between counsel, while we are here considering an important question of practice, and the fact of favors granted should have but little weight in determining the question. No general rule can he laid down as to what will or will not excuse such delay, as each case must be decided upon the circumstances of each; but the delay of more than two years after attention was called to the defect in the bill we think was unreasonable. To allow the record in this case to be withdrawn at this late date would tend to establish a very loose kind of practice, which should be condemned not only by the courts, but by the bar. These views, we think, are in harmony with the general trend of the decisions of the courts of other states.
The motion for leave to withdraw the record is denied.
