Harden v. Card

85 P. 246 | Wyo. | 1906

Potter, Chiee Justice.

This cause has been submitted upon a motion of the defendant in error to strike the bill of exceptions from the files, and dismiss the proceeding in error. The motion to dismiss is based upon the objections to the bill of exceptions ; it being asserted that without a bill none of the questions raised by the petition in error could be considered.

Several objections are urged to the bill. The first and principal objection is that the exceptions were not reduced to writing and presented for allowance within the time given for that purpose. It appears by the order overruling the motion for new trial, entered October 11, 1904, that the defendant below, plaintiff in error here, was given until and including the first day of the next term of court to prepare and present his bill of exceptions. The next term of court following the making of that order convened March 13, 1905. It is recited in the concluding portion of the bill of exceptions, immediately preceding- the signature of the District Judge before whom the cause was tried, as follows:

“And now on this 13th day of March,-1905, the same being the first day of the next succeeding term of this court, and within the time allowed by law and the order of this court, the defendant presents to the court his bill of exceptions herein. Said bill of exceptions being uncompleted, in this, that only a portion, probably a little more than one-half of the evidence and exceptions having been transcribed. The defendant then asked leave to withdraw the same from the files of the court for the purpose of completing the same and attaching thereto a transcript of the remainder of the evidence and exceptions in said case, which leave was thereupon granted by the court, neither the plaintiff nor his counsel being present in court when said request was made or granted, and neither the plaintiff nor his counsel having any knowledge of such request or in any way consenting to the granting of the same. And now on this 16th day of May, 1905, the defendant presents to the court the annexed and foregoing bill of exceptions as the completed bill of exceptions in this case and asks that the same he filed with the papers in the case as a part of the record, but not spread at large upon the journal, all of which is accordingly done, and to all of which the plaintiff by his counsel now and here objects and excepts.” There is also a pencil memorandum on the bill as follows: “Presented March 13th, 1905. D. H. C., Judge.”

At the foot of the bill appears a statement written with a lead pencil, over the signature of the attorney for the plaintiff below, dated May 16, 1905, admitting that the bill then signed contained substantially a correct transcript of the testimony and exceptions, but objecting to the bill being-signed on the ground that it was not prepared and presented within the time allowed, and requesting the court to certify the facts as to the time when said bill was presented, and its form when first presented on March 13, 1905.

The statute provides: “The party objecting to the decision must' except at the time the decision is made; and time may be given to reduce the exception to writing, but not beyond the first day of the next succeeding term.” (Rev. Stat. 1899, Sec. 3740.)

“When the decision is not entered on the record, or the grounds of objection do not sufficiently appear in the entry, or the exception is to the opinion of the court on a motion to direct a non-suit, to arrest the testimony from the jury, or for a new trial for misdirection by the court to the jury, or because the verdict, or if a jury was waived, the finding of the court, is against the law or the evidence, the party excepting must reduce his exception to writing and present it to the court, or to the judge thereof in vacation, within the time given for allowance. If true, it shall be the duty of the court, if presented in open court, or the judge of the court before whom the cause was tried, if presented in vacation, to allow and sign it, whereupon it shall be filed with the pleadings as a part of the record, but not spread at large upon the journal If the writing is not true, the court or the judge in vacation shall correct it, or suggest the correction to be made and it shall then be signed as aforesaid." (Rev. Stat. 1899, Sec. 3743.)

It is not contended that the bill is rendered imperfect from the fact that it was not signed until after the expiration of the time allowed for its presentation. Our statutes above quoted do not require that the signing or filing shall occur within the period granted for reducing exceptions to writing. If the bill is presented within the time allowed, the court or judge may take a reasonable time before signing to examine the same, and make or suggest necessary corrections. That is the recognized doctrine even where the statute seems to require the bill not only to be tendered, but signed and filed within the limited time allowed. (3 Ency. PI. & Pr., 474.) When time has been given not beyond the period permitted by the statute, and the bill is seasonably presented, the court or judge has jurisdiction to settle, allow and sign the same; and the fact that the signing does not occur until after the time allowed for presentation will not defeat a bill timely and properly presented. This rule is we believe well understood and unquestioned in this jurisdiction. Where the time of signing is not mentioned, it ought probably to be presumed that the act occurred at the date of presentation, or at least within the time allowed for presentation. But as the statute does not require the bill to be signed within the time allowed for reducing it to writing and presenting it for allowance, and, in practice, a bill is perhaps seldom signed within such time, where the full time is taken by counsel for preparation, no substantial reason is perceived for resorting to the fiction of signing as of the date of presentation. That may be necessary under statutes differently worded. The statutes of the various states show such a marked dissimilarity on the subject of bills of exceptions, that the decisions of other states assist but slightly in determining- the proper practice under our own statutory provisions.

It is, however, seriously contended that the bill was not presented within the time allowed, for the reason that it appears by the concluding certificate that it was in an incomplete condition when first presented, and that the time had expired when finally presented as completed on May 16, 1905. An affidavit of one of the attorneys for plaintiff in error has been filed in this court for the purpose of explaining the condition of the bill when presented on the first day of the March term, and justifying the failure of counsel to present it at that time in its present complete form. But that affidavit cannot be considered. The question raised must be determined upon the bill itself, and the recitals therein contained, which are authenticated by the signature of the trial judge. (3 Ency. Pl. & Pr., 513-514; Van Horn v. State, 5 Wyo., 501; Bank of Chadron v. Anderson, 7 Wyo., 441.)

It is the settled doctrine in this state that the code provisions with reference to bills of exceptions are entitled to receive a liberal construction. (Stirling v. Wagner, 4 Wyo., 5.) And the order granting time to reduce exceptions to writing has been liberally construed so as to preserve rather than deny the right of a part)'' to present his bill of exceptions for allowance. (Conway v. Smith Merc. Co., 6 Wyo., 327; Jones v. Bowman, 10 Wyo., 47.) Upon the same principle, the recitals in the bill as to its presentation and settlement ought to be liberally though' reasonably construed, to the end that the bill, which the trial judge has deemed proper to be signed, may be sustained if possible, rather than defeated.

It is to be remembered that this is not a proceeding to compel the signing of a bill. Here, the judge signed a bill, and the question is one of jurisdiction — whether he had or had not the right, upon the facts set forth in the bill, to sign it; and the presumption, if any, is in favor of the regularity of his act. It does not follow that because the judge might lawfully have refused to sign the bill as presented on the first day of the term, on account of its incompleteness, he would not be authorized to make or causé to allow to be made such necessary or proper additions as to constitute it a true bill and then to sign it as corrected and completed.

The statute contemplates that a bill may require correction before allowance and signing, and expressly permits the court or judge, if the writing be not true, as presented, to correct it or suggest the correction to be made, and then to sign it. We observe nothing in the statute which requires that a bill presented in time shall be ready for signing before the expiration of the time granted for reducing the exceptions to writing.

It may be conceded that it is the duty of a .party desiring to preserve his exceptions to prepare and present a bill fairly and fully setting- forth the facts upon which the rulings of the court excepted to were made; and that the draft so presented should state all the evidence, as he understands it, upon which the verdict or findings were based, where the exception is to the overruling of a motion for new trial 011 the ground that the verdict or findings are not supported by the evidence; and we think such a duty does rest upon the exceptant. It might even be conceded that where a presented bill confessedly lacks much of the material evidence, which is afterwards, and after the time allowed for presentation, inserted, but without the consent of the court, or, perhaps, with such consent, that a mandamus would not lie to require the allowance and signing of the bill, though we are not prepared to, nor is it necessary that we do, decide that question. It cannot, however, be doubted that, if all the facts are not set out in full or as the court or judge understands them, or if all the evidence is not embraced in the draft as presented, where it should be embraced to properly explain the exception, the court or judge may make or cause the necessary corrections to be made to conform the bill to the truth, not only by changing- incorrect statements of fact, and striking out matters improperly included, but by adding omitted evidence. Such authority is clearly conferred by the statute. How far a judge ought to go in correcting a bill rather than to refuse his signature is not the question before us. As it is not the duty of the judge to prepare a bill in the first instance, he might, perhaps, rightfully refuse to accept or correct a bill which, though it ought to contain all the evidence, admittedly lacks a large part of it, at least if there appears to be no reasonable excuse for such omission. But it is evident that counsel may in good faith insert in his proposed bill all that he deems essential to properly bring up his different exceptions, and, where the evidence is necessary, all that he understands the evidence to be; and yet opposing counsel or the judg'e, or both, might find it incomplete by reason of the omission of material facts or evidence, which, would result in material corrections and additions; and in such case we do not think that the authority of the court or judge to make such corrections in order to truly set forth the facts and exceptions, and their to sign the corrected bill, is to be questioned.

In Ohio, where the statute as to bills of exceptions seems to be strictly construed, a mandamus to compel the signing of a bill was denied, it appearing that, as submitted to opposing counsel within the time allowed, several exhibits which had been offered in evidence were omitted, though they were handed to opposing counsel in envelopes, and they were attached to the bill after the time allowed had expired. It was, however, said in the opinion:

“If purporting to contain all the evidence, it should contain in the form of a bill of exceptions all the evidence which counsel presenting the bill claimed the evidence to be. It does not follow that the bill presented to counsel for examination should in fact contain all the evidence, for opposing counsel and the judge might add to the bill certain items of evidence omitted, or might strike from it certain matters improperly there; but this fact does not relieve the counsel from preparing and presenting to opposing counsel, within the time provided by law, a bill of exceptions complete and proper in form in that it shall contain, if it purports to contain all the evidence, all that he claims to be the evidence, and not a part merely.” One judge dissented from the decision, such dissenting judge holding that the law had been substantially complied with. (State ex rel. v. Evans, Judge, &c., 12 O. Cir. Ct., 245.)

In California, it was said:

“The draft to be prepared by the party should be full and fair. * * * The mistakes and omissions of the draft may be corrected and supplied by the suggestions and order of the judge on the settlement of the bill, so as to. make the bill, when settled, conform to the truth, and correctly set forth, so far as is material, what transpired on the trial or proceeding to be reviewed.” (Sansome v. Myres, Judge., 77 Cal., 353, 19 Pac., 577. See also Hyde v. Boyle, 89 Cal., 590, 26 Pac., 1092.)

The Supreme Court of Kansas say on this subject:

“The power of the trial court to make such alterations, erasures, and additions in a prepared bill of exceptions presented for signature as may be necessary to make it speak the truth is undoubted, and has been declared by this court.” (Swartz v. Nash., 45 Kan., 341, 25 Pac., 873.)

To the same effect may be cited, among other cases, Lum v. Hoag, 30 Wis., 159; Seibright v. State, 2 W. Va., 591; Mitchell v. State, 22 Ga., 211.

Counsel for defendant in error has cited two cases from Indiana which might seem to sustain his contention upon the present motion, and that they tend to support it ma}'' be conceded, viz: Wysor v. Johnson, 130 Ind., 270; McFadden v. Owens, 150 Ind., 213. But the certificate attached to the bill in the case of AVysor v. Johnson, stated explicitly what part of the bill as signed was first presented, which appeared to be only the first 288 pages of the bill that contained 822 pages; and it was not stated that any suggestion was made or consent given to correct the presented bill, but it was stated that, after the bill had been presented and so endorsed, it was left with the official shorthand reporter, and was not again seen by or presented to the judge until nearly a year afterwards, “at which time all that part of the foregoing bill following page No. 288 to and including page No. 822 has been since attached thereto.” Moreover, it seems that, under the statute of Indiana, the longhand manuscript of the stenographic report of the evidence is required to be filed with the clerk by the exceptant before incorporating the same into a bill of exceptions. (Citizens’ St. R. Co. v. Sutton, 148 Ind., 169.) And it is held in that state, by reason of their peculiar statute, that there must be an affirmative showing that the whole bill was tendered to the judge within the time given.

The argument of counsel for defendant in error, in support of the motion, proceeds upon the theory that, when the bill was presented on the last day of the period allowed, it confessedly contained a mere fragment of the material evidence, and not all that counsel presenting it understood that it should contain, or that was intended to be embodied in it. We are of the opinion, however, that we are not at liberty to give that construction to the recitals of the bill. In its present condition the bill purports to contain a complete transcription of the official stenographic notes of the evidence, such notes appearing- to have been transcribed after the death of the official stenographer by another person, and as so transcribed, the evidence is written out in full, with questions and answers, objections and exceptions, and remarks of court and counsel as they occurred during the trial; and no question is raised as to the correctness of the transcription. While the certificate states that the bill was incomplete when presented, it does not identify any pages or portion of the bill which was then omitted. The statement that only a portion, probably a little more than one-half of the evidence and exceptions had been transcribed, may refer to the transcription of the shorthand notes, which notes may or may not have been attached to or incorporated in the bill to be afterward transcribed; or it may mean that only a little more than one-half of the evidence was in any way incorporated in the bill. If it refers to a mere transcription of the notes, it does not negative the presence in the bill of the evidence not transcribed in narrative or other form. Assuming, however, that the court or judge found on examination that, nearly one-half of the evidence had been entirely omitted from the bill, it does not necessarily follow that the party presenting it had wil-fully or knowingly omitted material evidence or facts which he deemed essential to explain his exceptions. For instance, the last nine pages of the purported evidence now in the bill might have been properly omitted, so far as any exception of the party presenting the bill is concerned, as it appears that those pages contain the testimony of two witnesses, which, on motion of the defendant below, plaintiff in error here, was all stricken out, and was not, therefore, evidence upon which the jury or court acted.

Several exhibits, in the shape of contracts, bank checks, and letters are in the bill as part of the evidence, and, as the originals of such exhibits are in the bill instead of copies, it is apparent that they are not intended by the reference to evidence not transcribed. Taking the bill as it stands, and giving to the statements of the certificate all the force to which they are entitled, it is not shown thereby that the court was presented with what was admittedly the mere fragment of a bill, and we think it impossible to say, on the strength of the certificate, that the party presenting the bill had not in good faith set forth the facts as he or his counsel understood them, or that the bill as presented was not in such a condition as to authorize its correction by or at the suggestion of the judge. The reference to the withdrawal of the bill from the files for the purpose of correction indicates perhaps a misconception as to the nature or situation of a bill after presentation and before allowance. A bill is not properly filed as a paper in the case until allowed and signed, and although the present bill bears the clerk’s endorsement showing- its filing on March 13, 1905, it has no other effect, probably, than to supplement the recital of the bill as to the date of presentation. It is clearly proper to permit a party to take a presented bill temporarily for the purpose of making sug-gested corrections. That is a matter within the control of the judge upon whom the duty rests of settling the bill. We are of the opinion, therefore, that the objection that the bill was not presented within the time allowed cannot be sustained.

Another objection urged against the bill is that the motion for new trial was unsigned by counsel when filed, and was not signed until the court permitted counsel to sign it after the expiration of the statutory period for filing the motion. It is sufficient to say in disposing of this objection that the alleged defect in the motion is not disclosed by the bill of exceptions. The bill states that the motion for new trial therein set out in full, and appearing- to be properly-signed by counsel, was filed April 9, 1904, which was within the statutory period. Our attention is called to a journal entry of May 31, 1904, to the effect that, upon defendant’s-application to amend motion for new trial, his counsel were granted leave to immediately sign the motion, and that the same was accordingly done in open court; and that the motion of plaintiff to strike from the files the motion for new trial because it was not subscribed as by law required was denied. The motion for new trial, however, referred to in that entry is not identified; and neither the motion to-amend, nor the motion to strike, are incorporated in the present bill, nor in any other bill that has been brought into this record. The entry states that counsel for plaintiff excepted to the rulings, but such exceptions do not seem to have been preserved by a bill of exceptions. It is. well settled that motions are not in the record on proceedings in error, unless embraced in a bill. The point is therefore not well taken.

A further ground of the motion to strike the bill is that there is no record that the bill was allowed. A journal entry showing the allowance of the bill is not required. (McBride v. U. P. Ry. Co., 3 Wyo., 183; Hogan v. Peterson, 8 Wyo., 549.) And while the bill itself does not use the word “allowed,” the certificate of the judge is, we think,. equivalent thereto. It is also urged that the judge certified only as to the evidence, and not the exceptions. The signature of the judge to the bill allowing it and ordering it to be filed as part of the record authenticates all the statements of the bill.

The bill is also assailed on the ground that it is not endorsed as filed in the court below after it was allowed and signed. It is necessary that a bill should be filed after the allowance and signing thereof; and the fact that it appears to have been filed before its allowance on March 13, when it was presented, would not, we think, be sufficient. But under our present practice the original papers are sent to this court by the clerk of the court below upon an order of the clerk of this court. (Laws 1901, Ch. 3; Rules 11 & 12.) And by rule 11 it is required that the clerk of the lower court shall authenticate such papers by certifying that they are all the original papers in the cause, or certain papers (naming them) as the case may be. In the case at bar the bill of exceptions is fastened together with all the other original papers, and the clerk has certified that they constitute “all the papers filed in said case now on file in my office,” which certificate is dated September 25, 1905. It is apparent therefore that, after being- signed, the bill was left with the clerk for filing, and his failure to endorse it as filed cannot invalidate it. It is sufficiently shown to have been filed in the clerk’s office. (Board, etc. v. Shaffner, 10 Wyo., 181.)

The record is objected to because the pages are not numbered as required by the rules. But that is not a ground for dismissal in the first instance. The rules provide that the court may, of its own motion, or upon motion of the defendant in error, enter an order requiring the papers to. be properly arranged, or the pages numbered within a specified time, and that for a failure to comply with such order the cause may be dismissed in the discretion of the court. (See Rule 12.) The motion to strike the bill of exceptions- and dismiss the cause will be denied.

Beard, J., and ScoTT, J., concur.