14 S.D. 369 | S.D. | 1901
The bill of exceptions in this action was settled and certified July 30, igoo. The appeal was taken August 9th. On September 10th the abstract was served. On November 20th, the case being upon the calendar of this court, it was submitted without oral argument, under rule 21. Appellant’s brief was served January 9, 1901. On March 26, 1901, respondent obtained an order from this court, returnable on April 10th, requiring appellant to show cause why the record should not be returned to the clerk of the circuit court for the purpose of having the bill of exceptions corrected by the trial judge. Appellant appeared, and objected to a return of the record, for the reason that the application came too late. For the purpose of such objection, the facts alleged in respondent’s application must be taken as true. It must, therefore, be assumed that the bill of exceptions, as settled, does not conform to the truth. It is clear that bills of exceptions cannot be amended by this court. When and in what manner can they be amended by the trial judge? It was held in California that bills of exceptions may be amended by the trial judge, even after an appeal has been taken and a transcript of the record has been filed in the appellate court. Flynn v. Cottle, 47 Cal. 526. In this state the original record is usually transmitted to the supreme court, but the lower court may in any case direct copies to be sent in place of the original. Comp. Laws, § 5217. There is no essential difference between the practice in this state and that in California at the time the decisions cited from that state were ren
Does respondent’s application come too late? It is “within one year after” the bill was settled if that limitation has any application. The trial court or judge, upon good cause shown, and in furtherance of justice, may fix a time for allowing exceptions after the time limited therefor has expired; exceptions may be settled after the appeal has been perfected; and the cause may remain upon the calendar of this court to enable appellant to perfect his record. Comp. Laws, §5093; Implement Co. v. Porteous, 7 S. D. 34, 63 N. W. 155; Coulter v. Railway Co. (N. D.) 67 N. W. 1046. Certainly exceptions should be amendable for good cause shown, and in furtherance of justice, during the period in which they might be originally settled and allowed. After an appeal has been perfected, and the orig