69 Iowa 260 | Iowa | 1886
“I hereby certify that the within transcript, together with the exhibits therein referred to, contains and embraces all the evidence introduced and given in the case.of J. D. McCarthy v. W. D. Watrous & Co., tried at the time, and in the court, as in said transcript stated.
“September 30, 1885. 0. Hedges, Judge.”
It is provided by section 2831 of the Oode, as amended by chapter 209 of the Acts of the Eighteenth General Assembly, that bills of exceptions must be filed during the term, “or •within such time thereafter as the court may fix; but in no event shall the time extend more than thirty days beyond the expiration of the té-rm, except by consent of the parties or by order of the judge.” And it is provided by section 2835 that “when the decision is not entered on the record, or when the grounds of objection do not sufficiently appear in the record, the party excepting must reduce his exception to writing and present it to the judge for his signature.”
In the cáse of Lynch v. Kennedy, 42 Iowa, 220 and in other eases, it was held that a bill of exceptions must be signed within the time fixed by law, or the order of court, or agreement of the parties, and if not done within the proper ■time the bill may be stricken from the record in this court upon motion. As the statute (Oode, § 2832) provides that no stated form is required for a bill of exceptions, we have held that a certificate of the judge to the evidence, that it is all the evidence offered and received on the trial of the cause
Some of these cases hold, that the certificate must be filed within the time prescribed by order of the court. If not so filed it will be disregarded, or stricken from the record. These cases dispose of the certificate made by the judge in this case. It was made and signed several months after the time fixed by the order. They also dispose of the certificate made by the short-liand reporter, because it was not made until after the time fixed in the order. Whether, if made in time, and in proper form, it would be a sufficient bill of exceptions, we need not determine, because the question is not in the case.
It is a matter of sincere regret that appeals to this court must sometimes be determined without reaching the merits. Yery few law actions come to us upon appeal in which the evidence is set out in the original bill of exceptions. The evidence is taken down in short-hand, and it is not practicable to transcribe it during the term; and it frequently occurs that, owing to the press of business, the transcript or translation of the original notes is not made for several months. But the original notes are required to be filed,, and, as we have seen, they may be referred to in a bill of exceptions. This authorizes skeleton bills of exceptions, and such is the uniform practice, as will be seen by the numerous cases in which the question has been made whether the evidence is sufficiently identified to authorize the clerk to insert it in the bill. We thought that the very full directions given in the case of Hill v. Holloway, 52 Iowa, 078, as to these bills of exceptions, would obviate all further difficulty in their preparation; but at nearly every term of this court we are compelled to virtually dismiss apj>eals, either because the evidence necessary to present the errors complained of is not identified in. the bill of exceptions, or because, as in the case at bar, there is no bill of exceptions.
The judgment of the circuit court must be
Affirmed.