3 Wyo. 183 | Wyo. | 1888
Two motions are presented to the court for determination,— one, a motion to dismiss the petition in error; the other, a motion to strike from the record the paper purporting to be a bill of exceptions. As both these motions are intended by defendant in error to raise the same questions, they may be disposed of together, although the motion to dismiss is really disposed of by the fact that there are errors complained of which appear upon the record other than those contained in the bill of exceptions.
It is alleged by defendant in error that the bill of exceptions contained in the certified transcript from the court below is not a proper bill of exceptions, for the reason that it was signed by the judge below in vacation ; and, further, that no entry of its allowance and signature appears to have been made on the journal of the court below. It seems that the case was tried below at the May term, 1886, of the court, and that at that time, in accordance with section 2646, Rev. St. Wyo., the court, by an order regularly entered, granted until the first day of the
The only other objection is that no entry of the allowance and signing of such bill of exceptions appears upon the journal of the court below. In support of this objection, counsel rely upon a uumber of Ohio cases; but we do not deem them applicable, for the reason that section 5302, Rev. St. Ohio, expressly requires that such allowance shall be noted upon the journal, which shall be kept open for that purpose. Our statute contains no such provision, but, on the contrary, provides that; after its allowance and signing, “it shall be filed with the pleadings, as a part of the record, but not spread at large upon the journal ” The allowance, signing, and perhaps filing, are what constitute it a part of the record, and no journal entry is necessary for that purpose.
We therefore hold that sections 2646 and 2649 must be construed that a bill of exceptions, when time has been given by the court below, may be presented to the judge of the court who tried the case at any time within the limits prescribed; that when signed and sealed by him, and filed in the pleading of the case in the clerk's office, it becomes a part of the record without being journalized, and is properly a part of the transcript, and, when properly certified, is before this court.
The motion must be overruled.