Fechheimer v. Trounstiene

• Decision Date: 15 February 1889
• Parties: FECHHEIMER et al. v. TROUNSTIENE.
• Court: Colorado Supreme Court

20 P. 704

12 Colo. 282

FECHHEIMER et al. v. TROUNSTIENE.

Supreme Court of Colorado

February 15, 1889

Error to district court, Arapahoe county.

When the bill of exceptions in this case was prepared the presiding judge was absent from the state. It was tendered to his associate upon the bench (there then being two district judges) within the time fixed by order for signing and sealing the same. The judge to whom the bill was tendered marked the date of such tender, but declined to sign and seal the same. Upwards of six months after the return of the judge who presided at the trial, and long after the time fixed by order for signing and sealing the bill, it was presented to him, and was properly authenticated by him, under protest however, but at counsel's request, in order that they might obtain a ruling of this court upon the question of practice involved.

Morrison & Kohn, for plaintiffs in error.

Shaw & Dennison and W. S. Decker, for defendant in error.

PER CURIAM.

In regard to the authentication of bills of exceptions, some difference exists in the position taken by various courts of last resort; but, in our judgment, the view that such bills must be signed and sealed by the judge whose rulings are excepted to not only rests upon the better reason, but is also sanctioned both by statute and by the weight of authority. Morse v. Evans, 6 How Pr. 445; Law v. Lansing, 8 Cow 746; Railroad Co. v. Marseilles, 107 Ill. 313; People v. Lee, 14 Cal. 510; Davis v. President, etc., 20 Wis. 194. The wisdom and propriety of this rule are so obvious as scarcely to justify mention. The sole purpose of requiring judicial authentication of such bills is to preserve a correct transcript of matters dehors the record proper, for use in the court of review. The presiding judge is familiar with these matters, and in most instances he is the only person competent to determine, impartially, the accuracy of the bill. If it should happen that two different judges presided during the progress of the trial, there should be two bills of exceptions; each judge signing and sealing the one that embodies objections to the particular rulings made by himself. Railroad Co. v. Marseilles, supra. The settled practice in this state, when the party tenders his bill of exceptions within the time fixed by statute or order, and the same be not at once authenticated, is for the judge to mark thereon the fact and date of such tender,...