Black v. Youmans
| Decision Date | 02 August 1917 |
| Docket Number | 179. |
| Citation | 245 F. 460 |
| Parties | BLACK v. YOUMANS, District Judge. [*] |
| Court | U.S. Court of Appeals — Eighth Circuit |
Ira D Oglesby, of Ft. Smith, Ark., for relator.
J. H Evans, of Booneville, Ark., for respondent.
Before CARLAND, Circuit Judge, and RINER and MUNGER, District Judges.
Petition for writ of mandamus to compel respondent to settle and sign a bill of exceptions. The relator instituted an action for slander, claiming recovery on 11 causes of action. The defendant had verdict and judgment in his favor. The plaintiff requested and was allowed 100 days in which to prepare and file a bill of exceptions. This period extended 37 days after the expiration of the term. The defendant employed a stenographer, who made full notes of the testimony and proceedings at the trial. The trial consumed 6 days, and the testimony, if it had been extended into typewritten form would have embraced 700 to 800 pages. The plaintiff prepared a draft of a proposed bill of exceptions, consisting of 46 pages of testimony in narrative form, of 7 pages of exhibits and of 12 pages relating to the giving and refusal of instructions and proceedings at the trial. This draft was prepared from recollection of the evidence and from notes of the testimony made by relator's counsel. The stenographer was ready to prepare a transcript of his notes for the use of the plaintiff; but plaintiff was unable to avail himself of this assistance, because of lack of means.
The proposed bill of exceptions was presented to the trial judge for allowance, but he refused to sign it. The relator alleges in his petition that this bill 'contained the substance of all the material testimony given in the trial. ' The respondent gave as a reason for his refusal to sign the bill, and avers in his return, that the bill did not present the testimony of any witness as it was given at the trial, either in substance or form.
At the hearing of the application to settle the bill of exceptions, the trial judge called in the stenographer and had him estimate the number of pages that the testimony of each witness would embrace, if the notes were extended, as compared with the proposed narrative statements of the witnesses' testimony. The relator contended that it was the duty of the defendant to suggest any amendments or corrections necessary to make the bill a complete record of the testimony; but the court found that the bill was so abbreviated, disconnected, and incomplete that amendment was impracticable and it would have to be entirely rewritten.
As the case is presented, no question is made of the correctness of that portion of the proposed bill which relates to the proceedings on the trial, other than the record of the testimony. The plaintiff requested some instructions that were refused, and excepted to portions of the court's charge to the jury. That portion of the proposed bill which does not involve the testimony, or as to which the testimony stated is correct, should have been settled by the court, as a review may be asked of rulings which do not involve the sufficiency of the evidence.
The arguments in the briefs center about the allowance of the bill as a record of all the testimony on the trial; but this contention is not open, as the petition alleges no more than that it contains the substance of the material testimony. This allegation is denied in the return made by the trial judge. He was in a position to know what testimony was given and he refreshed his recollection by the aid of the stenographer's notes. This court cannot say that the proposed condensation of the testimony states the substance of the testimony given on the trial, because we are not advised as to the testimony that was received, and...
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Walker v. United States
...to make it full and fair, so that the burden is not cast upon the court or opposite counsel of preparing a new bill. * * *" Black v. Youmans, 8 Cir., 245 F. 460, 461. In this connection it may be noted that the appellants' proposed bill of exceptions, according to the admission of appellant......
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State v. Kays
...v. Nadeem, 284 Neb. 513, 822 N.W.2d 372 (2012).12 In re Interest of Justine J. & Sylissa J., supra note 7.13 See id.14 See Black v. Youmans, 245 F. 460 (8th Cir.1917).15 Steffy v. Steffy, 287 Neb. 529, 843 N.W.2d 655 (2014).16 See id. ...
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Clawans v. District of Columbia, 2676. Original.
...on the trial." See, also, Stimpson v. Westchester R. Co., 3 How. 553, 11 L.Ed. 722; Thatcher v. Killits (C.C.A.) 195 F. 471; Black v. Youmans (C.C.A.) 245 F. 460. Charges that the judge acted arbitrarily or unfairly in the conduct of the trial are not supported by the signed bill of excepti......