Beckwith v. Talbot

• Decision Date: 01 February 1875
• Citation: 2 Colo. 604
• Parties: BECKWITH v. TALBOT.
• Court: Colorado Supreme Court

2 Colo. 604

BECKWITH v. TALBOT.

Supreme Court of Colorado

February, 1875

Appeal from District Court, Pueblo County.

THIS cause having been continued at the last term to enable appellee to move the district court for leave to amend the record of the bill of exceptions, Mr. Butler now, at this term, filed a transcript of such amendment made at the June term, A. D. 1874, of the district court. Thereupon, Mr. Phelps, of counsel for appellant, moved to strike the transcript of such amendment from the files upon the ground that the district court had no authority to allow such amendment at a term subsequent to that in which the cause was tried, there being nothing in that court by or from which the amendment could be made. The transcript of the amendment did not show an exception to the ruling of the district court in allowing the amendment, but counsel stipulated that such exception was taken, and that the action of the court was based upon certain affidavits found in the transcript. The court, however, ordered a certiorari to the district court to bring up the record of that exception, which being now returned into this court with that record.

PER CURIAM.

We find, upon examining the record of the exception taken to the ruling of the court below, that the amendment was allowed upon minutes of the trial kept by the judge of that court, and, therefore, it is not true, as alleged by counsel, that there was no memorandum in writing upon which the amendment could be made. Mr. Stone, who took minutes of the testimony upon the trial below, testifies that by a slip of the pen he recorded the testimony as it is given in the original bill of exceptions, but that the witness did in fact testify as stated in the amendment, and his testimony was supported by the notes of the judge who sat at the trial. It is very clear that a mistake was made in preparing the bill of exceptions, and, as the evidence of the fact was still in existence, we think the court might well allow the amendment to be made. Doane v. Glenn, 1 Col. 454. As to the notice of the application for leave to amend, no objection to the sufficiency of it was made in the court below, and therefore none should be heard in this court.

The motion to strike from the files will be denied.

Motion denied.