Burns v. Chicago, Burlington and Quincy Railway Company

• Decision Date: 11 April 1906
• Citation: 85 P. 379,14 Wyo. 498
• Parties: BURNS v. CHICAGO, BURLINGTON AND QUINCY RAILWAY COMPANY
• Court: Wyoming Supreme Court

85 P. 379

14 Wyo. 498

BURNS v. CHICAGO, BURLINGTON AND QUINCY RAILWAY COMPANY

Supreme Court of Wyoming

April 11, 1906

ERROR to the District Court, Sheridan County; HON. C. H. PARMELEE Judge.

On motion to dismiss.

Motion to dismiss granted and cause dismissed.

E. E Lonabaugh and N. K. Griggs, for defendant in error.

The case having been tried to a jury, and a final verdict returned, a motion for new trial was necessary to authorize a review of the errors complained of; a bill of exceptions was also necessary, and is required by the plain language of the statute. There being no bill and hence no motion for new trial the cause here should be dismissed. (Smith v Casper, 5 Wyo. 510; Freeburgh v. Lamoureux, 12 id., 41; Groves v. Groves, 9 id., 177; Boulter v. State, 6 id., 66; Seibel v. Bath, 5 id., 409.)

Robert P. Parker, for plaintiff in error.

Motion for new trial was not required. In the court below no issue of fact was tried, but the judgment was rendered upon the pleadings. Where the error sought to be remedied appears upon the record, the party aggrieved may avail himself of it on appeal or error without a motion for new trial or bill of exceptions. (2 Cyc., 1076.) The exception of plaintiff in error was entered upon the journal, thus rendering a bill of exceptions unnecessary. (Rev. Stat. 1899, Sec. 3742; Seibel v. Bath, 5 Wyo. 409; Bank v. Swan, 3 id., 370; Maricopa Co. v. Rosson, 40 P. 314; Weeks v. Mining Co., 15 P. 304; State ex rel. v McQuade, 41 P. 897; Reynolds v. Jackson Co., 3 P. 1072; McKinney v. Carter, 29 P. 597; Alley v. McCabe, 35 N.E. 616; McEntee v. Cook, 18 P. 259; Plow Co. v. Webb, 12 U.S. Sup., 101; 2 Cyc., 1086.) The exception in this case was a proper matter for journal entry.

POTTER, CHIEF JUSTICE. BEARD, J., and SCOTT, J., concur.

OPINION

POTTER, CHIEF JUSTICE.

This cause was heard on the motion of defendant in error to dismiss, on the ground that no reviewable error is presented.

The cause was brought in the District Court by the plaintiff in error to recover damages for the alleged killing of certain cattle of plaintiff by an engine or engines of the defendant. A jury trial was had resulting in a verdict for the defendant, whereupon judgment was rendered dismissing the cause and awarding defendant its costs.

The petition in error complains of that judgment and assigns as error:

(1) That the court erred in overruling plaintiff's motion for new trial.

(2) That the court erred in dismissing plaintiff's petition.

(3) That the verdict is contrary to law. There is no bill of exceptions in the record, nor is it claimed that a bill was prepared or allowed, although it appears by a journal entry that time was granted within which to reduce exceptions to writing, which time has expired. It is clear, therefore, that none of the errors assigned are presented in a manner to authorize their review in this court.

Rule 13, so often referred to in former decisions, provides that "nothing which could have been properly assigned as a ground for a new trial in the court below will be considered in this court, unless it shall appear that the same was properly presented to the court below by a motion for a new trial, and that such motion was overruled and exception was at the time reserved to such ruling; all of which shall be embraced in the bill of exceptions." That the verdict is contrary to law is made by statute a ground for its vacation and a new trial. (Rev. Stat. 1899, Sec. 3746.) Hence, in the absence of a bill of exceptions showing that such question was properly presented to the court below by a motion to vacate or for a new trial, it cannot be considered in this court on error. It has been settled in this jurisdiction by a long line of decisions that a motion for new trial must be embraced in a bill of exceptions to become part of the record, and as there is no bill in this record, and, therefore, no motion for new trial which this court can consider, it follows that we cannot review the action of the court below in overruling the motion for new trial. Unless the verdict is contrary to law as alleged it is not perceived that the judgment is erroneous or prejudicial, though perhaps it should have been entered in a slightly different form.

We cannot agree with the contention of counsel for plaintiff in error that the errors alleged appear upon the record proper. It appears that in the journal entry of the trial, verdict and judgment, it is recited that after the jury were impaneled and sworn, and a witness had been called by the plaintiff, the court sustained defendant's objection to the introduction of any evidence by the plaintiff on the ground of the insufficiency of the allegations of the petition to constitute a cause of action, to which ruling the plaintiff excepted; and that thereupon the court directed the jury to return a verdict for the defendant; but no exception to that direction seems to have been entered. Counsel takes the position that the final result followed the ruling of the court sustaining the objection to the introduction of evidence, to which an exception was entered on the journal and it is argued that as the case therefore presents the single...