St. Croix Lumber Co. v. Pennington

• Citation: 2 Dak. 467,11 N.W. 497
• Parties: St. Croix Lumber Co. v. Pennington.
• Decision Date: 01 January 1882
• Court: Supreme Court of South Dakota

11 N.W. 497

2 Dak. 467

St. Croix Lumber Co.

v.Pennington.

Supreme Court of the Territory of Dakota.

Filed _______, 1882.

Appeal from judgment of the district court of Yankton county.Nelson J. Cramer, for appellant. West & Tripp, for respondent.

SHANNON, C. J.

This appeal is from a judgment rendered on the seventh of February, 1881, dismissing the complaint on the merits, and giving to the defendant the costs of the action. At the threshold the direct objection is made by respondent's counsel that there is no bill of exceptions or statement of the case, as required by the Code; and that the transcript is a bundle of papers among which are those properly of record, to-wit, the summons, complaint, answer, verdict, and judgment. It is contended that the last-named papers constitute the judgment roll proper, and that neither the clerk nor the judge can attach any other papers thereto, except in the mode prescribed by the statutes regulating civil procedure. It is furthermore denied that a certain certificate of the judge appended to the transcript can have the effect of making the papers therein enumerated a part of the record beyond what the statute itself recognizes as such. It is urged that such overplus of papers can only be made a part of the record by “a case or bill of exceptions properly settled, with notice to the opposite attorney, as by the Code of Civil Procedure.”

These grave questions must be squarely met by this court; and their consideration necessarily involves not merely the thirteenth rule of the supreme court, but also the body of the laws regarding “a case or a bill of exceptions.” We had thought that the provisions of the Code on this subject are sufficiently simple and clear; but in this we were mistaken. In this court each of the justices must, of course, be governed by the record, and by nothing else. Any previous knowledge of the case or the proceedings, personally obtained on a trial below, must give away before the record, which forms the sole standard for review. The personal knowledge of a judge, or his recollections of what transpired at and during a trial, certainly forms no part of the record, and must in no way be taken into account. The legal record is the only knowledge of the case we can have here, or which we can act upon. It is the sole basis of our Revision. It is therefore entirely futile for counsel to appeal to any such personal knowledge or recollections of the trial judge for the purpose of curing or supplying any defect or omission in the record.

Under chapter 16 of the Code of Civil Procedure there are two modes by which cases may be brought into the supreme court, to-wit: First, by appeal; and, secondly, by writ of error. Section 425. By the organic law writs of error, bills of exceptions, and appeals shall be allowed in all cases, from the final decisions of the district courts to the supreme court, under such regulations as may be prescribed by law. Section 1869, Rev. St. U. S.

The allowance of bills of exceptions has, accordingly, been regulated by the legislative assembly, in article 8 of chapter 12 of said Code, under the head of “Exceptions.” The amendment to section 281 was not enacted until March 4, 1881.

Now, what are “bills of exceptions,” as contemplated by the organic law and by the Code? An exception, of itself, signifies an objection to or protest against any ruling or decision of the court upon a question of law. It must be taken and stated at the time of the ruling, unless where it is otherwise particularly prescribed, as in section 249. A bill of exceptions is, therefore, a written statement of the exceptions duly taken by a party to the decisions or instructions of a judge in the trial of a cause, with so much of the facts or other matter as is necessary to explain the rulings. It must be settled, allowed, and signed by the judge, in the manner and upon the notice and within the time pointed out in the statute. And the only purpose or office of such a bill is to bring upon the record points or rulings which, without it, could not appear.

This leads to the inquiry of what is a record? At common law a record signified a roll of parchment upon which the proceedings and transactions of a court were entered or drawn up by its officers, and which was then deposited in its treasury, in perpetuam rei memoriam. Such rolls were termed the record of the court, and were of such high and supereminent authority that their truth could not be called in question. In inferior courts, or courts not of record, the proceedings were not thus enrolled, and hence the distinction between two classes of courts. In the United States, paper has universally supplied the place of parchment as the material for record, and the roll form, as formerly employed, has on that account fallen into disuse; but in other respects the forms of the English records have, with some modification, been generally adopted. In this territory, as elsewhere, the roll of parchment has given place to what is named “the judgment roll.” It is provided by the Code that the party or his attorney may furnish a judgment roll; but if he does not, that then “the clerk, immediately after entering the judgment, shall attach together and file the following papers, which shall constitute the judgment roll.” Section 299. Then follows, in the same section, a specific enumeration of the papers which shall be so filed and attached.

Of course, the constituent elements of this roll are and must be the summons, pleadings, verdict, and judgment, as a perpetual memorial and testimony of the litigation, and of the rights of the parties. Therefore, Justice Moody, in a recent case, has well said that “the record proper, in an action tried upon issues of fact, consists of the summons; the pleadings; the verdict, if tried to a jury; the decision, if tried to the court; and the judgment.” Golden Terra Co. v. Smith, ante, 97. See also Gress v. Evans, 1 Dak. 395. This roll is, consequently, the record-the technical record-and is the only strict and proper proof of the proceedings and determination of our district courts. If, however, before the entry of judgment a bill of exceptions or case has been lawfully settled, signed, and filed with the clerk, the latter must also attach such papers to the roll in their proper order, and they become part of the judgment roll without further action by the court or party. The purpose of a bill of exceptions, as has been stated, is to put the points decided upon the record, so as to bring them for review before a superior court. As formerly, so it must be “truly made;” for unless it be so, the judge is not bound to set his hand to it. That is, in the language of our statute, “the bill must be conformable to the truth, or be at the time corrected until it be so.” This means that it must be settled by the judge in the presence of the parties, or after the proper notice to the adverse party. It is the duty of the judge to see that the bill shall conform to the truth; for nothing false or erroneous should go into the record to prejudicethe rights of the parties. The object in settling a bill is, therefore, to arrive at accuracy, and this as well in justice towards the court that tried the cause as to the suitors.

When the bill is thus settled it must be signed by the judge, and this is required in confirmation of its accuracy. The next requisite is that it must be filed with the clerk. With regard to a bill duly settled, signed, and filed after the entry of judgment, and within the time limited by law, there seems to be no express provision making it a part of the judgment roll; for the Code (section 299) appears to contemplate only such bill as is in the clerk's hands before, at or immediately after the entry of judgment. Such bill, however, becomes a part of the record on appeal from the judgment by operation of law. When evidence is in any way involved the bill must set forth only so much of it as is necessary, together with the direction prayed for or objection, and the determination of the court; for, in the words of the Code, “the objection must be stated, with so much of the evidence or other matter as is necessary to explain it, and no more. Again, when the exception is to the verdict or decision upon the grounds of the insufficiency of the evidence to sustain it, the objection must specify the particulars in which such evidence is alleged to be insufficient.”

As to the time of presenting the bill, it may be presented to the judge at the time any ruling is made, or the exception may be entered on the judge's minutes and afterwards settled. The latter is the course most usually pursued; for the former mode occasions protracted interruptions of a trial and consumes much valuable time. In practice, therefore, the substance of the exception is merely noted at the time it is taken; and the bill is afterwards settled, drawn up in form, and tendered to the judge for his signature. But in either event the Code requires the presentation of the bill; and when it is not presented at the time of the ruling it “may, upon three [now five] days' notice to the adverse party, at any time after such ruling is made, and within ten [now thirty] days after the entry of judgment, or such other time as may be fixed by the court, [now or judge thereof,] be presented to the judge and settled.” It follows that notice to the adverse party is essential, and that in his absence no settlement can be made unless upon due proof of the requisite notice. And the settlement must be within the prescribed period, unless an extension of time be granted and fixed by the court or judge. In other words, the bill must be presented and settled within the statutory limit of time, or at such other time as may have been so fixed; otherwise there is no power or authority to allow the bill. See Muller v. Ehlers, 1 Otto, 250;Bryan v. Maume, 28 Cal. 241;Kavanaugh v. Maus, 28 Cal. 263.

The bill must also relate to...