Louisville Bridge Co. v. Neafus

110 Ky. 571 | Ky. Ct. App. | 1901

Lead Opinion

'Opinion of the court by

JUDGE DuRELLE

Affirming.

The record shows that the official reporter was directed to take down the testimony in the case. After á verdict had been rendered against appellant, and a motion for a new trial overruled'^ appellant tendered its bill of exceptions and transcript of testimony, which were laid over until January 20., 1900, for plaintiff’s counsel to examine same. On the 20th of January, an order was entered reciting that the official transcript of the official stenographer of the icourt of the testimony heard in the ease was1, examined by the court, approved, and made a part of the record. The order proceeds': “Thereupon came the defendant, and tendered its bill of exceptions herein, which was examined, approved, and signed, and ordered to be filed as part of the record herein, .and thereupon the defendant prayed an appeal,” etc. The transcript of testimony, upon examination, does not appear to be attested or identified by the trial judge. Upon the authority of Coal Co. v. Finley (Ky.) 32 S W., 477, (20 Ky. L. R. 1329) it is contended that the transcript though made a part oí the bill of exceptions, can not be considered by this court, because it is not attested or identified by the trial judge. In that case sections 4639, 4641, Kentucky 'Statutes, were considered, and it was held that: “In all civil actions, whether ordinary or equitable, where oral testimony is heard on the trial ,the testimony taken by the reporter under the direction of the court, etc., may be brought up without being copied, when attested or identified by the trial judge.” It is not necessary to decide whether such transcript could be considered, if made a. part of a proper bill of exceptions, without further identification than the certificate of the official reporter. This transcript of testimony is not before this court except as a part of what is called a “bill of exceptions,” and, while the order recites that the bill of exceptions which was presented to the court was signed and approved, what is copied as a bill of exceptions in this record does not appear to be either dated or signed by the judge. In City of Henderson v. Allen & Co., 10 Ky., Law Rep., 282, this exact question was presented. In the opinion by Judge Barbour, it is said: “It therefore follows that w'hat is now claimed to be the bill of exceptions is not the bill signed by the judge, or that, notwithstanding the recital in the order, the bill was' in fact not signed. Therefore, as upon the plaintiff’s pleadings, if sustained by the evidence, they were entitled to the judgment rendered it must be affirmed.” In Stanford v. Parker (Ky.) 15 S. W., 784, 12 Ky. L. R. 878 it was said, in an opinion by Judge Bennett, construing section 337 of the Civil Code of Practice: “What purports to be the evidence used on the trial is embraced in what is called a 'bill of exceptions,’ which is not signed by the judge. The 337th section of the Civil Code of Practice is imperative upon the judge to sign, bill of exceptions if he approves the same. Said bill of exceptions not having been signed, we can not consider the same. Consequently, there being no proof that we can consider as to the appellant’s title to the land in dispute, and his title thereto having been put in issue, the judgment dismissing his action must be affirmed.” Neither the instructions nor the evidence appear, except in this bill of exceptions, and we are constrained to the conclusion that we can not consider the errors relied on. There being, therefore, no bill of exceptions which we can consider, we must presume that the evidence was sufficient to authorize the judgment, as the pleadings support it. Donan v. Dorian’s Adm’r, 12 Ky. Law Rep., 291; Curran v. Taylor (Ky.) 18 S. W., 232; (13 Ky. L. R. 750) Johnson v. Hale, 13 Ky. Law Rep., 542; Quaid v. Cornwall, 13 Bush, 60; Tinsley v. White (Ky.) 54 S. W., 169. (21 L. R., 1151) The judgment is therefore affirmed.

GIBSON, MARSHALL & GIBSON, Attorneys eor appellant.

On January 19, 1900, counsel for appellant prepared and tendered a bill of exceptions and transcript of evidence herein to the judge who tried the ca$e, and moved the court to sign, approve and file the bill of exceptions and transcript of evidence. The court refused to sign or direct the bill and transcript to be filed until they had been .approved by counsel for appellee, but ordered them tendered and laid over until next day. On the next day the clerk handed the bill of exceptions and transcript of evidence to the court and informed it that appellee's counsel had no objection to them. The court then directed the clerk to file the same, which was done, and by oversight, the court failed to affix his signature to either the bill of exceptions or the report of evidence.

When the attention of the trial court was called to its failure to affix its signature to these papers, it promptly set the case for argument on a motion of appellant to have the bill of exceptions and report of evidence signed nunc pro tunc, as of January 20, 1900. When the motion came up for hearing the trial judge immediately agreed with appellant’s counsel that the omission to sign the hill and report of evidence was wholly the court’s fault, and it promptly signed both the bill of exceptions and the report of evidence nunc pro tunc, as of January 20, 1900, the same day on which they were filed in the lower court.

A supplemental record has been prepared, showing these facts, for the purpose of perfecting the appellant’s record in this court, and we believe the ends of justice require that the judgment affirming herein he withdrawn that the appellant be allowed to file the supplemental record tendered and the ease he reheard on its merits.

Appellant’s counsel did not see the brief for appellee, and had no intimation that anything was wrong with the record until a copy of the opinion of this court was received, affirming the case on the sole ground that the record was imperfect.

AUTHORITIES CITED.

Wisconsin Chair Co. v. Columbia Finance and Trust Co. 22 Rep., 1344; Washington Life Ins. Co. v. Menefee’s Executor, 21 Ky. Law Rep., 917; Doty, &c. v. Trustees Berea College, 12 Ky. Reporter, 964.

Field: A nutic pro tunc order filing a hill of exceptions, entered in the lower court after the affirmance on a judgment on appeal, can not be considered on a petition for rehearing.

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Rehearing

Opinion op the court bt

JUDGE DuRELLE

Overruiing petition

POR REHEARING.

After filing 'the opinion in this case, the appellant appears* to have given notice- to appellee, and produced-before the common pleas division of the Jefferson Circuit Court certain affidavits and the minutes of said court, upon which it moved the court to sign and approve the bill of exceptions and transcript of evidence filed in the case, and to malee said signatures nunc pro tunc, as of the 20th day of January, 1900. The circuit judge thereupon entered an order sustaining the motion, and, as recited in the order, “thereupon the court approved the said report of the evidence, and signed the bill of exceptions, all as of the 20th day of January, 1900.” A petition for rehearing has been filed in this court, together with a motion to set aside the judgment of this court and the submission, and to file a supplementary record showing these proceedings, and containing a copy of the bill of exceptions signed by the circuit judge, but not containing the transcript of testimony, or showing that it was signed or identified by the judge, except in so far as the order quoted, and reciting that it was approved, tends to show that fact. In support of these motions, appellant relies upon several eases decided by this court. In Wisconsin Chair Co. v. Columbia Finance & Trust Co. (Ky.) 60 S. W., 717, 22 Ky. L. R., 1374 the opinion does not show the action relied on as a precedent, but the action taken was to set aside a judgment of affirmance, and permit the filing of .a corrected and supplemental transcript, showing the bill of exceptions to have been signed by the circuit judge. What was done in that case was to correct the record in this court, and make it conform to the record as it existed in the trial court at the time of the appeal. In Doty v. Trustees (Ky.) 15 S. W., 1063, 16 S. W., 268 (12 Ky. L. R., 964) an omission from the transcript of the record filed in this court of the return of service of process was permitted to be corrected after a judgment of reversal rendered upon the sole ground that service of process was not shown. In Insurance Co. v. Menefee’s Ex’r (Ky.) 53 S. W., 260, (21 Ky. L. R., 916) a supplemental record was filed before submission, showing a nunc pro kmc order filing the bill of exceptions contained in the original record, bearing an indorsement showing its filing, and having a'certificate in the usual form, signed by the judge. The nunc pro tunc order seems to have been made subsequent to the taking of the appeal, but the supplemental record was nevertheless considered. The question of practice in that case, however, was not essential to the decision of the case, which was affirmed upon the merits. It will be observed that none of the authorities cited come up to the question presented in this case, which is whether, after submission and judgment in this court, the record in the lower court may be amended, and such action so taken by the lower court be shown here, to enable this court to reverse its former action. With considerable regret arising from the circumstances of hardship which appear in this case, we have reached the conclusion that this can not be done. The case of Insurance Co. v. Menefee’s Ex'r, supra, went as far in this direction as the court has ever gone, and in that case the supplemental record was filed before submission. Even upon the assumption that the transcript of evidence is sufficiently identified by the mere recital in the order now presented that it was approved by the court, we thiDk the application comes too late. In the case of Doty v. Trustees, supra, the court, speaking through Judge Pryor, seemed to base its action upon the ground thait the error of the clerk in making the transcript of the existing record was not properly chargeable against the parly injured thereby, for it was there said: “While this court has always ruled that parties must look to the record before submission, and that it is too late to complete the record after the decision here adverse to the party who ought to have seen the record was perfect before submission, yet, in a case like this, where service was had, and the clerk omitted to copy it, or erred in making the copy, it seems to us the error ought to be corrected; and therefore a rehearing is granted and judgment affirmed.” In that case appellant brought the record here, and the error in that record —a mere omisision by the copyist — had resulted in a reversal against the appellee, who seems to have been considered as having the right to rely upon the record brought by the appellant as correct. In this case the error occurred in the court below. It prejudiced, not the appellee, but the appellant, who brought the record here, and now, after submission and judgment against appellant, it is sought to correct the error in the court below, and present the record of that correction in this court for its .action. In Stanford v. Parker (Ky.) 15 S. W., 784, referred to in the opinion, where the imperfection in the record which resulted in an affirmance was the failure of the circuit judge to sign the bill of exceptions, this court, through Judge Bennett, said that ‘The case having been submitted on the record as it is, and a decision having been rendered thereon, it is too late now to ask for a correction.” In Brewing Co. v. Seelbach (Ky.) 40 S. W., 671, (19 Ky. L. R., 375) the transcript .of evidence was not copied, and an affirmance was had for that reason. After the decision, this court refused to permit a correction to be made, although it was shown by afS davit that the error was • entirely an •omission of the clerk. The policy of such a practice as that here sought to be sanctioned would, in 'our judgment, be extremely disastrous, and we have therefore reached ■the conclusion that we oan not permit an extension of such practice beyond the limits heretofore authorized, which reach quite as far as is consistent with a reasonable degree of certainty in the practice. The petition is overruled.