11 S.D. 433 | S.D. | 1899
This is an original application for writ of mandamus commanding a. judge of the circuit court to settle and sign a bill of exceptions in a civil action. The applicant, who is plaintiff in such action, desiring to move for a new trial, and to have all of the evidence preserved in the record, proposed a statement containing 85 pages of typewritten mat
It may be doubted if the a/pplicant has not mistaken his remedy, if he has any, under the circumstances revealed by his application. It would seem that his case falls within the provisions of Comp. Laws, § ■ 5085. However this may be, we proceed to consider whether it was the duty of the trial judge to settle and sign a statement, purporting to contain all the evidence received and offered on this particular trial, without the aid of a transcript of the reporter’s notes. The correctness of the proposed statement was challenged by defendant’s proposed amendments and objections. It contained 85 pages of typewritten matter. It was the duty of the trial judge to strike out of the proposed statement all redundant and useless matter, making it conform to the truth, and as brief as possible. 1$. §§ 5082, 5083. In this instance it was necessary to include all of the evidence. Evidently the duty of the judge could not have been faithfully performed without the use of a transcript or by having the reporter read his notes. It is not the reporter’s duty to read his notes for any such purpose. He feceives per diem for making shorthand notes, not for reading
But there is another sufficient answer. If circuit judges cannot require transcripts in one case, they cannot in any, and presently all their time will be occupied in the unusual and unnecessary labor of hearing ' reporters read their shorthand notes. Without deciding that a trial judge would be justified in requiring the assistance of a transcript in all cases’, we hold that, under the circumstances shown by the application in this proceeding, it was entirely reasonable and proper to refuse to settle a statement containing all the evidence until the party desiring its settlement should procure a transcript of the reporter’s notes. These views do not conflict with the decision bf the territorial supreme court in Mining Co. v. Smith, 2 Dak. 377, 11 N. W. 97. The proposition contended for in that case was that the trial judge could not settle a bill or statement without the aid of a transcript. This contention was not sustained, but the court did not hold that a trial judge could not, if he so desired, require the assistance of a transcript, if one was obtainable. It is now the universal practice in this state for the person who desires to have a bill settled to procure a transcript for the use of the court, the expense of which is allowable as a disbursement. We think, "in proper cases, the judge may require a party to conform to this practice. In North Dakota, where the moving party procured a transcript of such portions of the reporter’s notes as were necessary to present the errors relied upon, the supreme court held that