26 S.D. 300 | S.D. | 1910
This is one of two actions involving the same issues. Plaintiffs were successful in both, the verdict in this case being for $11,500, and for $10,500 in the other. An application for a new trial having been denied in each case, defendants appealed from the judgment and order denying such application. Respondents now move in each case on the same grounds to strike from the record what purports to be a bill of exceptions, to strike from the files of this court appellants’ abstract, and to dismiss the appeal.
The purported bill of exceptions is attacked on the ground of redundancy. Failure to comply with the statutory rule requiring the trial judge in settling a bill of exceptions “to strike out all redundant and useless matter so that the exceptions may be presented as briefly as possible” (Code Civ. Proc. § 296), notwithstanding repeated admonitions, having occasioned much unnecessary expense, labor, and delay in the disposition of appealed causes, this court in September of last }^ear several months preceding the settlement of the bill in this action sustained a motion to strike a bill of exceptions in a civil action and refused to review the record in a criminal action, for the reason that the provisions of the statute and rules of this court requiring the exclusion of redundant and useless matter, which, in effect, are the same in both classes of actions, had been disregarded. Farrar v. Investment Co., 122 N. W. 585; State w. McCallum, 122 N. W. 586. Being entirely satisfied with the views then announced, the same action should be now taken unless the present case is distinguishable from those cited. In Farrar v. Investment Co., after stating the provisions of the statute, this court said: “In this case
Before proceeding to consider specific objections to the abstract, it is proper to observe that it contains several unnecessary pages which appellants would not be entitled to include in their taxation of costs and disbursements should they prevail in this court and proper objections be then interposed. But that is a matter to be considered when it arises, should it ever arise.
It is contended the abstract should be stricken out for the reason that it contains no assignment of errors as required by the
The contention that the abstract should be stricken out because many of the specifications in the bill are insufficient, and would be insufficient if printed as assignments of error in the abstract is not tenable. An abstract should not be stricken out if there is one proper assignment therein. When the cause is considered on the merits, that one proper assignment ’will be reviewed, and all others ignored. Defects in the specifications, as found in the bill of exceptions, cannot be cured by proper assignments in this court. If the abstract in this case, when it shall have been amended, is not supported by the bill of exceptions, an additional abstract will send this court to the original record and its decision will be governed by that record. It follows that respondents’ motion should be denied, and that appellants should be allowed, upon proper terms, 'to amend their abstract b]r adding thereto such assignments of error as they intend to rely on in this court.
An order conforming to these conclusions will be entered in each case.