Cook's Estate v. Fiedler

• Citation: 135 P. 1109,24 Colo.App. 544
• Court: Colorado Court of Appeals
• Decision Date: 14 October 1913
• Parties: COOK'S ESTATE et al. v. FIEDLER et al.

135 P. 1109

24 Colo.App. 544

COOK'S ESTATE et al. v. FIEDLER et al.

Court of Appeals of Colorado

October 14, 1913

Appeal from District Court, Summit County; Charles C. Cavender Judge.

Action between the Estate of D.J. Cook, deceased, and others and George Fiedler and others. From a judgment in favor of the latter, the former appeal. On motion to strike the bill of exceptions from the file. Denied.

Joseph N. Baxter, of Denver, for appellants.

James T. Hogan and Quentin D. Bonner, both of Leadville, for appellees.

MORGAN J.

Appellees move to strike the bill of exceptions because it was never filed in the lower court and contains no certificate of the clerk identifying it; although it was tendered in due time, bears the seal and signature of the judge, there is no contention as to its being the original bill, and two years and six months have passed since it was filed in this court along with the duly certified transcript of the clerk's record. The bill of exceptions was tendered November 25th, the clerk certified to the record proper December 13th, and the bill was signed and sealed by the judge December 25, 1910. The transcript and the bill were filed here January 9th, abstract of the record March 18th and appellants' brief April 5, 1911. No appearance by appellee until this motion was filed July 22, 1913. It is doubtful if this motion is in apt time. Merriner v. Jeppson 19 Colo.App. 218, 74 P. 341; Bd. Co. Com'rs v. Tulley, 17 Colo.App. 113, 67 P. 346; Reynolds v. Campling, 21 Colo. 86 39 P. 1092; P. L. Ins. Co. v. Van Fleet, 47 Colo. 401, 403, 107 P. 1087.

Appellants ask leave to withdraw the record, however, so as to supply the omissions of the clerk's filing stamp and certificate as to the bill of exceptions, and granting such leave makes it unnecessary to announce a positive rule as to the laches of the appellees. Appellees strenuously resist such request and have asked leave to file a copy of the register of actions and fee book of the lower court and an affidavit of the clerk thereof that the bill of exceptions was never in the hands of the clerk. Appellees may file the same with the clerk of this court, but leave is granted appellants to withdraw the record and supply the omissions, for the reason that no rule of law will be abrogated thereby and justice demands it. The carelessness of appellants in failing to have the clerk file and certify to the identity of the bill before filing it here is not condoned, but as our courts have been liberal in permitting such amendments, where no injustice is done, it may be permitted here.

As far back as 1873, in the case of Eldred v Malloy, 2 Colo. 20, 22, this question was before the court, and from the opinion by Wells, J., we learn that "although a bill of exceptions must be tendered to the judge within the term, or within such time as the court may allow thereafter, yet, if signed and sealed within the time limited, it may be filed at any subsequent day." And, although it must appear by the record to have been actually filed at some day, nevertheless it may be withdrawn for amendment. The opinion states: "But in the present case the file mark is wanting, and there is nothing to supply it, except the affidavit of counsel, which we cannot consider. If counsel for the plaintiff in error desire, the cause may stand over in order that the record may, in this respect, be perfected. It will, we think, be sufficient, if the probate judge shall certify that the bill of exceptions, which has been included in the record certified, was filed in his office at any day prior thereto; it need not be certified that it was marked filed, but the certificate must specifically refer to the bill of exceptions now in the record...