89 P. 584 | Wyo. | 1907
This is a proceeding in mandamus, originally commenced in this court. From the pleadings it appears that the relator, a copartnership, was sued and judgment recovered against it in the District Court of Sweetwater County by Beckwith, Quinn & Company, a corporation. The cause was tried to a jury on October 28 and 29, 1904. The relator moved for a new trial. The motion was overruled and, upon request, time was allowed the relator within which to reduce its exceptions to writing and present them for allowance.
It was the relator’s duty to prepare and present its exceptions. The burden was upon it not only to do so, but to
Relator’s counsel filed an affidavit in support of the contention that the evidence so tendered as a part of the bill of exceptions was all of the evidence bearing upon and explanatory of the exceptions and errors complained of. Such affidavit was not conclusive upon the court or judge. In the broadest view it could serve only to refresh the recollection of the judge before whom the case was tried, and it is upon the latter and not that of the attorney in the case that the certificate to the bill of exceptions rests. If, notwithstanding such affidavit, the judge’s recollection is not so clear as to warrant him in certifying and signing the bill as true, such judge cannot be coerced to do so, for he and not the relator must pass upon its truth or falsity as well as upon its completeness or incompleteness. In Brinson v. Callaway, Judge, 37 S. E. (Ga.), 177, the statute was
By the allegations of the answer which are admitted by the demurrer the defendant has not failed or refused to perform any duty required of him, but, on the contrary, he has shown a disposition to assist the relator and to do everything within his power to enable it to get a correct transcript of all the evidence, so that when inserted in the bill of exceptions the latter would be correct and speak the truth. Instead of acting on the suggestion of the judge the relator failed to have a transcript of the evidence made and present the same as an amendment to be inserted in the bill of exceptions, and its counsel made a direct issue with the judge as to the necessity of incorporating in the bill any more evidence than that requested by him in order to intelligently pass upon the questions raised by the exceptions — a question which was judicial in its character and exclusively within the province of;the court or judge. The determination of that question was in no wise ministerial, and it is well settled that this court cannot substitute its judgment for that of the defendant. (13 Ency. Pl. & Pr., 530, and note; 19 A. & E. Ency. Law, 732, and cases cited.) The defendant has neither neglected nor refused to perform a duty imposed by statute. Had he done so mandamus would lie to compel him to act, but not to control his judgment. A judge cannot arbitrarily refuse to settle and sign a bill of exceptions, but he will never be compelled to settle and sign such a bill when it fails to truthfully show the testimony, objections,'rulings and exceptions. (13 Ency.
It follows that the demurrer to the answer must be and it is hereby overruled.