13 S.D. 30 | S.D. | 1900
This case comes before ns on an order to show cause why a copy of a certain tax deed from the county of Potter to D. M Boyle, referred to as “Exhibit B,” should not be inserted in the bill of exceptions and in appellant’s abstract in this case. On the argument on the appeal in this case, it was objected on the part of respondent’s, and supported by their additional abstract, that a certain tax deed from the county ol Potter to D. M. Boyle, which was copied into the abstract, was not contained in the bill of exceptions, and hence could not be considered by this court on this appeal. On an examination of the original bill of exceptions, the statement made by
The counsel for respondents strenuously resist the applica- . tion of appellant to have a copy of this tax deed now annexed to the bill of exceptions as an exhibit, and rely mainly upon Wright v. Lee, 10 S. D. 263, 72 N. W. 895. But in that case the motion was to amend the bill of exceptions by inserting matter therein set forth in an affidavit made by appellant’s counsel, and there was nothing in the record itself that would authorize the amendment. In that case the court, speaking by Mr. Justice Fuller, said: “As this court must act upon, and treat as a verity, the bill of exceptions settled in the court below, and is without jurisdiction to change the record certified on appeal as required by law, we decline to grant appellant’s motion to amend the bill of exceptions to conform to an affidavit submitted therewith, and upon which the application is based. Cluck v, State, 40 Ind. 263; 3 Enc. PL & Prac. 502.” In 3 Enc. PL & Prac. 503, following the citation in the above case, is the following: “But, where a defect in the bill or in the names of the parties is clearly amendable by the statements embodied in the transcript, the appellate court may permit amendment to be made even upon motion of adverse party to dismiss;’’ and the author cites Parks v. Johnson, 79 Ga., 567, 5 S. E. 243; Sims v. Hatcher, 77 Ga. 389, 3 S. E. 92; Epping v. Aiken, 71 Ga. 682; Lewis v. Chisholm, 68 Ga. 46.