Callahan v. E. O. Houck & Co.

• Decision Date: 16 December 1905
• Citation: 14 Wyo. 201,83 P. 372
• Parties: CALLAHAN v. E. O. HOUCK & CO
• Court: Wyoming Supreme Court

83 P. 372

14 Wyo. 201

CALLAHAN v. E. O. HOUCK & CO

Supreme Court of Wyoming

December 16, 1905

ERROR to the District Court, Natrona County, HON. CHARLES E CARPENTER, Judge.

On motion to dismiss, and motion to withdraw the bill of exceptions for the purpose of having the same corrected.

Appeal dismissed.

L. E Armstrong, for defendants in error, argued and contended that the proceeding in error should be dismissed for the failure of the plaintiff in error to have the papers in the cause transmitted to this court forthwith or in a reasonable time after the order therefor was made.

Norton & Moody, for defendants in error, argued and contended that the bill of exceptions was insufficient to authorize any consideration of the evidence, in failing to show that it contained all the evidence, citing Roy v. U. Mer Co., 3 Wyo. 417; and that the exception taken to the overruling of the motion for new trial must appear in the bill, citing Freeburgh v. Lamoureux, 73 P. 545; Bank v. Anderson, 53 P. 280. They further argued that the showing made was insufficient to authorize the return of the bill for correction, and contended that without some minute or memorandum as evidence on which to base a correction or amendment, it could not be made; and also that the mistake was the fault of counsel for plaintiff in error citing Ry. Co. v. Walsh, 37 N.E. 1001; Bank v. Eldred, 143 U.S. 293.

Butler & Hagens, for plaintiff in error.

Where the trial judge has in apt time certified to a bill of exceptions made from the stenographer's transcript, and the certificate fails to state that the bill contains all the evidence, the judge may at a subsequent term amend his certificate so as to show that the bill contains all the evidence where the stenographer's transcript shows the evidence of each party by question and answer, and that they respectively rested. Such amendment may be made by a separate order referring by apt words to the certificate to be amended. (Ry. Co. v. Walsh (Ill.), 37 N.E. 1001; Heinsen v. Lamb, 7 N.E. 75; Harris v. Tomlinson (Ind.), 30 N.E. 214.)

VAN ORSDEL, JUSTICE. POTTER, C. J., and BEARD, J., concur.

OPINION

VAN ORSDEL, JUSTICE.

This action was brought by the plaintiff in error against the defendant in error in the District Court of Natrona County for the recovery of a reward. The cause was tried to the court and judgment was entered for the defendant. The errors assigned cannot be considered unless the evidence is in the record by a proper bill of exceptions. The bill of exceptions was signed by the trial judge and filed with the clerk of the District Court on May 13, 1905. The petition in error was filed in this court on May 17th, but the original papers containing the bill of exceptions were not filed here until October 21st. On August 31st counsel for defendant filed a motion to strike the bill of exceptions from the files, for the reason that the trial judge had not certified that it contained all the evidence given in the cause. On September 13th counsel for plaintiff filed a motion suggesting a diminution of the record and asking permission to withdraw the bill of exceptions for the purpose of having the certificate of the trial judge amended. The propriety of granting the request to withdraw the bill is the first question that requires consideration.

Nowhere does it appear in the bill of exceptions or the certificate of the trial judge attached thereto, that the bill contains all the evidence given in the cause. This defect raises the presumption that the bill is not complete and that portions of the evidence have been omitted. Where the error assigned is that the judgment is not supported by sufficient evidence, a bill of exceptions with portions of the evidence omitted will be no more effectual on appeal than no bill at all. In either case, this court will assume that the evidence given in the cause was sufficient to support the judgment. The bill of exceptions in this case is, therefore, fatally defective, and will not authorize the consideration of any of the errors assigned, all of which depend upon the sufficiency of the evidence. Section 3740, Revised Statutes, provides: "The party objecting to the decision must except at the time the decision is made; and time may be given to reduce the exception to writing, but not beyond the first day of the next succeeding term." Until the time allowed by the court for the presentation of the bill of exceptions has expired, the bill itself or supplemental bills may be presented by counsel for the consideration of the court. But when the time allowed for the presentation of the bill expires, counsel loses control of it, and cannot of his own motion make any further changes, but might doubtless suggest to the court any amendments or corrections necessary to make it speak the truth. When the bill of exceptions is signed by the trial judge and filed, it then becomes a part of the record, and can only be amended or corrected in the manner provided by law for the amendment or correction of any other part of the record. (Heinsen v. Lamb, 117 Ill. 549, 7 N.E. 75.) During the term at which the trial occurs and the judgment is entered, the entire record is within the possession and control of the court. The bill of exceptions, being a part of the record and within the control of the District Court during the term, if it be presented and signed during the term, may be amended or corrected by the trial judge from his own recollection, or upon his own motion, or upon the motion of counsel, the same as any other part of the record may be amended or corrected during term. After the term has expired, however, if the bill has been signed and filed during the term, the trial court loses control of the record, and the bill of exceptions as part of the record cannot then be amended or corrected from the memory of witnesses or the mere recollection of the trial judge, but only upon minutes or memoranda in the possession of the court or judge, such as would authorize the entry of a nunc pro tunc order amending or correcting any other part of the record. And when in pursuance of time given for that purpose under the statute, a bill of exceptions is presented after the term, and it is then signed and filed, it becomes a record subject to amendment and correction in the same manner only as a record after...