60 Iowa 112 | Iowa | 1882
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.”
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.
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, 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.
Overruled.