28 P.2d 475 | Wyo. | 1934
In this cause, the defendant in error has filed a motion to strike the bill of exceptions, to dismiss the review proceedings, and to affirm the judgment of the District Court of Carbon County. The grounds set forth in the motion and argued in support of it are, in substance, these: 1. That the petition in error, in assigning the errors relied on by the plaintiff in error, merely complains of the order of the trial court overruling the motion for a new trial filed in the district court, and does not comply with the requirements of Rule 10 of this court which, insofar as pertinent here, reads:
"The petition in error shall distinctly set forth each of the errors complained of, describing with reasonable certainty the cause wherein the errors are alleged to have occurred, and the judgment or final order to be reviewed."
2. That the bill of exceptions is not properly certified as containing all evidence in the case. 3. That the record in the cause is insufficient to invoke a review of the order or judgment involved. 4. That the abstract of record filed herein by the plaintiff in error is insufficient under Rule 37 of this court.
A hearing was had on this motion on November 14th last and, on the 22nd of that month, plaintiff in error filed an application for leave to file an amended petition in error. Briefs supporting and opposing this application have been presented by the *496 parties and, on December 9th last, their stipulation was filed waiving oral argument and submitting the matter for the court's decision.
An examination of the amended petition in error presented discloses that if it is allowed to be filed, the criticism suggested in the first ground of the motion, as stated above, will be without force as the defect — and it is a defect; see Fitzpatrick v. Rogan,
The grounds of the motion numbered "2" and "3," supra, may be considered together, as they involve, in substance, the same matter. It is said that the certificate to the bill of exceptions signed by the trial judge is insufficient, in that it does not state that the bill contains all the evidence in the case, and Davis v. Minnesota Baptist convention,
The 4th ground of the motion, i.e., the insufficiency of the abstract of the record filed by plaintiff in error, pursuant to Rule 37 of this court, is well taken in several respects. There is no statement of the contents of the pleadings or of the motion for a new trial such as the rule contemplates. It cannot be gleaned from the abstract before us, the true state of the issues between the parties, as only those allegations which counsel for plaintiff in error deem material are set out. None of the assignments of error relied on are given and there is no final certificate of the abstract's truth and accuracy, as the rule directs. Argument on the merits of the case or on the questions involved in it does not properly belong in an abstract, yet it appears occasionally in the one at *498 bar. The rule provides that, "In the case of oral testimony and depositions, the substance shall be reduced to narrative form except where, with respect to material portions of the record, it is deemed necessary to use the exact language thereof." This does not mean that a party shall not abstract testimony or evidence which he alone may think immaterial, but he should include sufficient thereof to reflect accurately the evidence which either side may fairly desire to rely upon in this court, and to this end having in mind always the questions raised and argued in the court below.
No dates are given showing the due filing of the petition in error and the steps taken to perfect the review proceedings. So far as the abstract is concerned, we are left to surmise as to when the pleadings in the case or the motion for a new trial were filed. What is required by the rule is, as said by the Supreme Court of Kansas in Atchison, Topeka, Santa Fe Ry. Co. v. Conlon,
In view of the fact that an amended petition in error is to be filed, and having in mind the questions presented by this record and, also, that as previously mentioned, the time for instituting proceedings in *499
error has not yet expired, we deem it in furtherance of justice not to dismiss the case outright, — Simpson v. Occidental Building Loan Assn. et al.,
Leave to file the amended petition in error will be granted.
KIMBALL, C.J., and BLUME, J., concur.