Wells v. Burlington, Cedar Rapids & N. R. Co.

• Citation: 9 N.W. 364,56 Iowa 520
• Court: United States State Supreme Court of Iowa
• Decision Date: 21 June 1881
• Parties: WELLS, ADM'X, ETC., v. BURLINGTON, CEDAR RAPIDS & NORTHERN R. CO.

56 Iowa 520

9 N.W. 364

WELLS, ADM'X, ETC.,

v.BURLINGTON, CEDAR RAPIDS & NORTHERN R. CO.

Supreme Court of Iowa.

Filed June 21, 1881.

Appeal from Butler circuit court.

The plaintiff is the administratrix of the estate of her deceased husband, Victor S. Wells, and prosecutes this action to recover the damages sustained by reason of the death of the intestate caused by the negligence of defendant while he was in its employment as a brakeman. There was a verdict and judgment for plaintiff. Defendant appeals.J. & S. K. Tracy, for appellant.

Fred. Gilman and D. F. Gibson, for appellee.

BECK, J.

1. At the term of this court held in October, 1880, at Dubuque, a motion made by plaintiff to strike from the record the bill of exceptions was sustained. On the day this order was made, defendant moved the court to set it aside. The cause, with this motion and a motion of plaintiff to affirm the judgment, was continued to the December term, and defendant had leave, in open court, to file an amended abstract. At the December term plaintiff moved to strike defendant's amended abstract, filed November 13, 1880, in pursuance of leave obtained as aforesaid. The cause was thereupon continued until the March term, 1881, at Council Bluffs, with an order that all motions be submitted with the case. At the March term the cause, with the motions, was finally submitted for decision.

The motions first demand our attention. The motion to strike the bill of exceptions is based upon the ground that it is a “skeleton bill,” and does not sufficiently identify the evidence and instructions, which it was intended to present as parts of the record. Under the rule of Hill v. Halloway, 52 Iowa, 678, the bill of exceptions is not sufficient, as it fails to identify in any manner the evidence and instructions, the only proceedings referred to therein. If this bill of exceptions were to be depended upon alone to make the evidence and instructions a part of the record, we could not determine whether they were truly set out in the record. It merely directs the clerk to copy, as a part thereof, the evidence and the instructions given and refused, leaving for the clerk to determine what he shall copy, and giving no means of identification whereby he may be directed what papers he shall copy, and whereby errors, if he should make any, could be corrected. The true practice in preparing bills of exceptions is very simple, and leaves the clerk no opportunity for mistakes in preparing the transcript. The bill should identify the different papers intended to be made a part of the record, in something like the following manner: “Here clerk will copy evidence certified by the court, filed in this case and marked A.” “Here clerk will copy instruction given upon request of plaintiff, filed in this case and marked B,” etc. A proper manner of identifying with certainty papers intended to be referred to in bills of exceptions will readily occur to the practitioner. We think the order sustaining plaintiff's motion to strike the bill of exceptions was rightly made, and the motion to set it aside ought to be overruled.

2. We are now required to consider plaintiffs' motion to strike the amended abstract filed by defendant. This abstract is probably intended to set out more fully some parts of the testimony, and is especially designed to present the instructions given and refused, with the exceptions noted upon the margin thereof. It is not unusual to allow parties to file amended abstracts when they discover that their cases are not fully presented in the original abstracts. This, of course, is always done before the case is submitted, and at such times that the other parties will not be prejudiced thereby. The amended abstract of defendant was filed in ample time before the submission of the case for the plaintiff to present corrections or deny its statements. The motion to strike it is overruled.

3. Plaintiff moved to affirm the judgment of the court below upon the ground that after the bill of exceptions has been stricken out, nothing remains to show the evidence in the case or the errors in, and exceptions to, the rulings of the court below. We will proceed to consider the questions arising under this motion. September 1, 1880, before the first term at which the case appeared in this court, plaintiff filed with the clerk an additional abstract, correcting and making additions to the evidence presented in defendant's original abstract. It is not claimed by plaintiff that the original abstract and plaintiff's additional abstract do not present all the evidence in the case. Indeed, the inference is to be drawn from the act of plaintiff in correcting and adding to the evidence as set out in the original abstract, that she admits that all evidence is presented by the two abstracts. We have held that a party filing an additional abstract, purporting to supply defects and omissions in the original abstracts, cannot deny that all the evidence is before the court. Star v. City of Burlington, 45 Iowa, 87;Cross v. B. &. S. W. R. Co, 51 Iowa, 683.

Plaintiff, by his additional abstract, admits that the evidence was preserved in the court below, and presents additions to the testimony, which she inferentially admits set out, with the original abstract, all the testimony in the case. We will not permit her to deny, after making the admission, that the evidence is preserved in the court below, and that the parties, by their several abstracts, present all of it to this court. Parties to actions will not be permitted, in this manner, to change the grounds upon which they claim the judgment of the court, and deny what they have before admitted. The striking of the bill of exceptions does not take from the records the instructions and the exceptions thereto, for they are made a part of the record without a bill of exceptions. Code, § 2787. In the case before us the giving and refusing of the instructions, and the exceptions, are noted upon the margins. This is sufficient, without a bill of exceptions, to authorize this court to review the rulings of the court upon the instructions. Cadwalider v. Blair, 18 Iowa, 420;Phillips v. Starr, 26 Iowa, 349. We conclude plaintiff cannot deny that the evidence set out in the abstract is all the testimony in the case, and that the instructions and exceptions thereto sufficiently appear in the record without the bill of exceptions, all of which is properly presented by the abstract. The plaintiff's motion to affirm must, therefore, be overruled, and the cause must be considered upon its merits.

4. Under a rule...