Moore v. Booker

• Decision Date: 11 September 1894
• Court: North Dakota Supreme Court

62 N.W. 607

4 N.D. 554

LOUISIANA E. MOORE v. LEWIS E. BOOKER, et al

Supreme Court of North Dakota

September 11, 1894

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Judgment reversed, and a new trial ordered.

CORLISS J. (concurring).

OPINION

On the petition of appellants a rehearing was ordered in this case mainly upon the point hereinafter discussed, and which has been fully argued by counsel for the respective parties. After the case had been argued and submitted upon the former hearing, and without any application to this court, or leave of this court in any manner obtained or requested, the respondent, on notice to appellants, applied to the Judge of the District Court to have the bill of exception in the case amended and corrected. At the appointed time counsel appeared before the Judge of the District Court, and urged the same objections against any action by that official that are urged here, which are, in effect, although in many forms, that such judge was without power or right, in the then condition of the case, to in any manner change the record. These objections were overruled, and the amendment or correction ordered, the appellants saving an exception. The amendment having been made, respondent applied to a judge of this court, under Rule 37, and obtained an order directing the clerk of the District Court to transmit the amendment to this court. This was done, and the amendment was in this court and treated as a part of the record when the former opinion was handed down. It appears that at the trial below, the plaintiff, who is respondent here, offered in evidence what purported to be a letter written by the defendant Booker to the plaintiff. The record, as it originally came to us, showed that the defendants objected to the introduction of the letter, for the reasons that the same was "incompetent, irrelevant, and immaterial, and no proper foundation laid for its introduction." The objection was overruled, and the letter received. This, we understand, is in accord with the stenographer's notes, and appellants claim in accord with the facts. The amendment makes the record show that when the objection as above stated was made to the letter, counsel for the defendants at the same time admitted the signature to the letter to be the genuine signature of the defendant Booker. The letter is as follows: "Pembina, Dak., Sept. 14th, 1891. Mrs. L. E. Moore, San Jose, Cal.--Dear Mrs. Moore: I am just in receipt of yours written Aug. 28th, and held at your office for postage. In reply, I will not pay off the mortgage, as I only expected to get the rent of the property for the taxes I paid on the house. Now, you may have the deed of the property for your mortgages, only I want the money I paid for taxes. I did not assume the payment of the mortgages, and do not expect to pay it. You have the same protection you had before I bought the property, hence you cannot think that I am doing you any injustice. Rather than have you think so, I would lose one-half of the amount. I paid taxes, and give you a deed. Mr. Ryan bought the property, put it in my name in order to secure the money advanced, and I was to have 1/2 interest in the profit if anything was made upon the investment. I do not want the property myself at any reasonable price, as it is too good to rent, and is running down every day, with that Irish family in it, and there is no one here able to buy it to live in. My uncle made Mr. Ryan an offer for it, but I hardly think he wants it now, as his wife has concluded the weather is too cold here. With kindest regards and best wishes, I am, sincerely your friend, L. E. Booker." It is at once apparent that, if the letter was in fact the letter of Mr. Booker, it is competent, and quite material; and, if the signature was admitted, then the letter was properly received in evidence. On the other hand, if the signature was not admitted, and if the objection was broad enough to cover that point, the letter was improperly received. Hence the materiality of the amendment. We are all agreed that, under the circumstances as they existed, the trial judge could not amend or correct the bill of exceptions. As we have stated, there was no application to this court, no suggestion here of a diminution or imperfect record. Under our practice statutes, when an appeal is taken, unless the trial court expressly orders otherwise, the original papers and record in the case are transmitted to this court. No such order was made in this case, consequently the original record came to this court, and was the record of this court at the time the amendment was made. There was no record in the trial court to be amended or corrected. There was no record in the trial court to be amended or corrected. There is not entire uniformity in the decisions touching the power of the trial court to make orders in a case while it is pending on appeal in a higher court. In Levi v. Karrick, 15 Iowa 444, the Supreme Court of that state said: "The simple matter of fact is that when an appeal is taken all power of the court below over the parties and the subject matter of the controversy is lost until the cause or some part thereof, is remanded back, by order of this court, for its further action." And this was reaffirmed in Carmichael v. Vandebur, 51 Iowa 225, 1 N.W. 477, which was an appeal from an order of the trial court refusing to entertain a motion in a case pending on appeal. In Perry v. Breed, 117 Mass. 155, the court say at page 164: "In strictness, after a bill of exceptions has been once allowed, and has been entered in this court, this court has exclusive jurisdiction of it, and the judge below cannot alter it without the authority of this court." But it is said to be the common practice in that state, on motion of either party before argument, and on cause shown, to postpone the hearing, and authorize an application to the trial court to correct the bill. See, also, Penrice v. Wallis, 37 Miss. 172; Keyser v. Farr, 105 U.S. 265, 26 L.Ed. 1025; State v. Jackson 112 N.C. 849, 16 S.E. 906. The record was amended in State v. Town Board, 69 Wis. 264, 34 N.W. 123, but it was based exclusively upon the fact that the record still remained in the trial court, not even a transcript having been sent to the supreme court, although the appeal had been perfected. But see Rehmstedt v. Briscoe, 55 Wis. 616, 13 N.W....