Wilson v. First Presbyterian Church

| Iowa | Dec 7, 1882

Day, J.

This cause was submitted upon a motion of the appellee to strike out the bill of exceptions and all the evidence and instructions of the court contained therein, and to strike all the testimony and the instructions of the court contained in the appellant’s abstract, for the following reasons:

“1. That neither the abstract of the appellants nor the transcript filed in this cause states, or shows said bill of exceptions was ever filed in the clerk’s office and made a part of the record of this cause after being signed by the judge.

“2. That the evidence and instructions of the court were not included in, nor attached to, the bill of exceptions when signed by the court, and are not referred to in a manner so definite as to make them a part thereof.

“3. That the abstract of the appellant does not state, nor show, that the instructions were ever preserved by a bill of exceptions.

“4. That appellant’s abstract does not show that the court ever certified to the evidence or the instructions, and ordered the same made a part of’ the record.

“5. That appellee’s abstract shows that the evidence and instructions of the court were never preserved by a bill of exceptions, and this abstract of the appellee is not controverted by appellants.”

For the sake of clearness we will consider the above grounds of objection in an order different from that which is presented in the motion.

1. pbaoticb eourtP:rfliing bill of exceptions : regularity presumed. I. As to the objection that neither the abstract of appellants nor the transcript states or shows that the bill of exceptions was filed in the clerk’s office, and made a part of the record:

1. It is not necessary that the abstract should .state that the bill of exceptions was filed in the clerk’s office and made a part of the record. This statement is not usually made in the abstract. In the absence of any controvei-sy upon the subject, it is assumed that the bill of exceptions has been properly filed and made a part of the record. If that fact is controverted by the appellee upon motion to strike out the evidence, as in this case, we have recourse to the transcript for the purpose of ascertaining, the facts.

2. It is claimed in the argument that there is nothing in the transcript to show that the bill of exceptions has ever been in the clerk’s office since it was signed by the judge. Section 2831 of the Code provides that the bill of exceptions shall be filed during the term, or within such time thereafter as the court may fix, but that the time shall not extend more than thirty days beyond the term, except by consent of parties, or by order of the judge. On the 4th day of March, 1882, the motion for a new trial in this cause was overruled, and the defendants were given sixty days to perfect their bill of exceptions. On the 18th day of March, the bill of exceptions was signed. This bill is marked filed February 18,1882. As the bill was not signed until March 18, there is probably a clerical error in the date of filing, as it is not probable the bill was filed before it was signed by the'judge. But, however this may be, as the bill of exceptions is embraced in the transcript, it is clear that it was filed in the clerk’s office at some time, and, as it was signed within the time limited by the court, in the absence of all showing to the contrary, it will be presumed that it was filed within the proper time.

2. —:-: transcript consulted. II. We now come to consider the fifth ground of the motion, that appellee’s abstract shows that the evidence and instructions were never preserved by a proper bill „ . r " . L oí exceptions, and appellee s abstract is not controverted by the appellant’s. It is claimed that where the appellee’s abstract states that no proper bill of exceptions was ' filed, and the appellant does not by additional abstract controvert the statement, it will, without reference to the transcript, be taken as true. Ordinarily, where a controversy arises as to the contents of a bill of exceptions, a statement in the appellee’s abstract, not controverted by appellant, will be taken as true. But this rule does not apply when the controversy arises as to the existence of a bill of exceptions. In a very large number of cases the appellant’s abstract simply sets forth the testimony, without any statement that it has been properly preserved by bill of exceptions. If no question is made as to the proper filing of a bill of exceptions, we presume that the evidence has been properly preserved. If the appellee states in his abstract that no proper bill of exceptions has been filed, and moves to strike out the evidence on that ground, we do not take the statement as true, but we refer to the transcript for a determination of the question.

3. practice : preserving: fusteucHons!4 III. The fourth objection is, that appellant’s abstract does not show that the court ever certified to the evidence or instructions, and ordered the same made a part of the record. This is a law action. It is not essential to a review of it that the evidence and instructions should be certified by the judge. It is sufficient for that purpose if the evidence is properly made a part of the record by bill of exceptions, and the instructions are identified by bill of exceptions, or in other proper manner.

4 _. wu wentifyingus: evidence. IV. We now consider the second and third objections, that the evidence and instructions of the court were not in-eluded in, nor attached to, the bill of exceptions w^eri signed by the court, and are not referred to -fo a manner so definite as to make them a part thereof, and that the abstract of the appellant does not state nor show that the instructions of the court were ever preserved by a bill of exceptions.

Section 3777 of the Code, as amended by section 2, chapter 195, Laws of 1880, provides that the original notes of any testimony taken in any case shall be filed in the office of the clerk of the court, and become a part of the record in said case; and said original notes, or the transcript thereof, may be referred to in any bill of exceptions, and, when duly transcribed and certified, shall be inserted therein on appeal. Section2834of the Code provides: “An exception, when presented for signature, need not include therein, spread out at length, any writing filed in court, but may incorporate the same by any unmistakable .reference thereto, and the clerk, in making a transcript of the bill of exceptions, shall write therein at length all of such writing included therein by reference.”

The bill of exceptions refers to the evidence in the following manner. “The following testimony and rulings were had and reduced to writmg by said reporter, being all the testimony on said trial. Here insert evidence in full.” This clearly refers to the testimony taken by the reporter as the testimony which is to be inserted in the transcript. On the 7th day of June, a translation of the reporter’s notes was filed in the office of the clerk, and certified by the reporter to be true and correct, and to contain all the evidence in the case. ■ This testimony is embraced in the transcript. We think the evidence is unmistakably identified. The case differs from Hill v. Holloway, 52 Iowa, 678" court="Iowa" date_filed="1879-12-13" href="https://app.midpage.ai/document/hill-v-holloway-7098712?utm_source=webapp" opinion_id="7098712">52 Iowa, 678, in which the bill of exceptions contained " no indication as to the sources from which the clerk should determine what was the testimony in the case.

b. —: - — : instructions, The instructions of the court are referred to in the following manner: “After the argument of counsel in said cause, and by and- with the consent of counsel, tihe court instructed the jury orally, which instructions were reduced to writing by the reporter as follows. Here insert instructions.”

At tlie same time that the evidence was filed in the office of the clerk, there was also filed what purports to be the charge of the court, taken down by the short hand reporter, and certified by him to be the entire charge of the court. This also is incorporated in the transcript. The transcript is, in many respects, very informal. But it does, we think, so identify the evidence and the instructions, as to leave no doubt that it embraces the evidence and the instructions upon which the cause was tried in the court below. The motion to strike out the evidence and instructions is

Overruled.