Freeburgh v. Lamoureux

• Decision Date: 20 August 1903
• Citation: 73 P. 545,12 Wyo. 41
• Parties: FREEBURGH v. LAMOUREUX, ET AL
• Court: Wyoming Supreme Court

73 P. 545

12 Wyo. 41

FREEBURGH v. LAMOUREUX, ET AL

Supreme Court of Wyoming

August 20, 1903

ERROR to the District Court, Fremont County, HON. CHARLES W BRAMEL, Judge.

On motion to strike the bill of exceptions from the record.

Motion to strike granted.

N. E Corthell, for plaintiff in error.

There is no case in this court expressly deciding that the order overruling the motion for new trial, and the exception thereto, must appear in the bill. The office of the bill is to bring into the record the testimony and the papers which are not otherwise parts of the record. (McGonigle v Arthur, 27 O. St., 252; Horner v. Batdorf, 35 id., 117; Young v. Martin, 8 Wall., 354.) The judgment and orders made in the progress of the cause are proper matters of record. (R. S., 1899, Secs. 3430, 3435 3436, 3751, 3776-3779.) "All such original papers in the case" and a duly authenticated transcript of all journal entries, or all journal entries of record as may be necessary to exhibit the errors complained of, are to be brought up, and these papers and transcript are made a part of the record in the Supreme Court. (Laws 1901, Ch. 3, p. 5.) Journal entries are part of the record proper, and it would be repetition to have them embodied in the bill, and in case of conflict between the journal entries and bill, the court would be driven to the necessity of deciding in favor of one or the other. In Ohio the journal entry must show the error complained of. (Windherst, 1 O. C. C., 28.) Also in West Virginia. (Gilmer v. Sidenstricker, 42 W.Va. 52.) And in Ohio the precise question here was decided in opposition to the point made by the motion in this case. (Fleishman v. Shoemaker, 2 O. C. C., 152.) Also in Nebraska. (State v. Bartley, 56 Neb. 810.)

Gibson Clark, for the defendant in error.

The statute (Sec. 3743, R. S.) plainly establishes the method of bringing into the record the ruling upon the motion for new trial and the exception thereto, viz: by bill of exceptions. The court rule (13) simply emphasizes the statutory requirement. (2 Ency. Pl. & Pr., 273-276; Lockhart v. Brown, 31 O. St., 431; Ry. Co. v. Thurston, 44 O. St., 525; Siebel v. Bath, 5 Wyo., 409; Boulter v. State, 6 Wyo., 66; Bank v. Anderson, 7 Wyo., 441; Groves v. Groves, 9 Wyo. 173.)

POTTER, JUSTICE. CORN, C. J., and KNIGHT, J., concur.

OPINION

POTTER, JUSTICE.

On behalf of one of the defendants in error, a motion is filed in this cause to strike the bill of exceptions from the record on the ground that it sets forth only such exceptions as could have been reviewed by the trial court on a motion for a new trial, and that the bill fails to show that such motion was either sustained or overruled by the court below, or that any exception was reserved by plaintiff in error to whatever order was made upon it.

The bill of exceptions contains a motion for new trial by the plaintiff in error, who was defendant below; but there is no disclosure in the bill itself that the motion was overruled, or if overruled, that the ruling was excepted to. Among the journal entries made in the cause, however, and certified to this court by the Clerk of the District Court, appears an entry as follows: "Comes now the above named defendants and present to the court their motion for new trial of this action; the court having heard said motion read and the argument of counsel thereon, and being fully advised in relation thereto, orders that said motion be and the same is hereby denied, to all of which defendant now and here excepts."

The proposition does not seem to be disputed that every exception embraced in the bill and dependent upon it for its preservation is of a character required by our rules and practice to be presented to the trial court by motion for new trial before it can be reviewed by this court on error. It is, however, insisted that the order entered on the journal sufficiently shows the overruling of the motion and the exception thereto, and constitutes said ruling and exception a part of the record independent of the bill.

Rule 13 of this court explicitly requires the ruling upon the motion for new trial, and the exception thereto to be exhibited in the bill of exceptions. That rule is as follows: "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. The ruling of the court below upon each matter presented by a motion for new trial shall be sufficiently questioned in this court by an assignment that the court below erred in overruling such motion for a new trial."

In Bank of Chadron v. Anderson, 7 Wyo. 441, 53 P. 280, we said: "The exception to the ruling of the court denying the motion must appear in the bill, and we could not resort to any other record to supply it, and the reference above made to the failure of the entire record to show such an exception is mentioned merely by way of emphasis to show the more clearly, if possible, that, however much we might be inclined to favor the bill by every reasonable intendment, that would not permit us to supply an omission of such an essential requirement as an exception to a ruling which is assigned as error." It was held in that case that the provisions of rule 13 in this respect were the necessary result of the statute on the subject. (See also Boulter v. State, 6 Wyo. 66, 42 P. 606; Seibel v. Bath, 5 Wyo. 409, 40 P. 756; Groves v. Groves, 9 Wyo. 173, 61 P. 866.) And we think that the rule is not inconsistent with the statute. Section 3742, Revised Statutes, provides: "When the decision objected to is entered on the record, and the grounds of objection appear in the entry, the exception may be taken by the party causing it to be noted at the end of the entry that he excepts." Prior to the adoption of this provision from the code of Ohio it was held by the Supreme Court of that state that the same applied only where the decision would properly be entered of record, if no exception was taken to it; and was not intended as a substitute for a bill of exceptions, where the exception relates to matters occurring during the trial. (Lockhart v. Brown, 31 Ohio St. 431.) In that case the exception related to the charge of the court to the jury, which was improperly made part of the entry.

It is provided, however, by the succeeding section (3743) as follows: "When the decision is not entered on the record, or the grounds of objection do not sufficiently appear in the entry, or the exception is to the opinion of the court on a motion to direct a non-suit, to arrest the testimony from the jury, or for a new trial for misdirection by the court to the jury, or because the verdict, or if a jury was waived, the finding of the court, is against the law or the evidence, the party excepting must reduce his exceptions to writing and present it to the court, or to the judge thereof in vacation, within the time given for allowance." The statute itself, therefore, requires the exception to be shown by bill when it relates to an opinion of the court on a motion for new trial, because the verdict or findings are against the law or evidence. (Ide v. Churchill, 14 Ohio St. 372; Westfall v. Dungan, 14 Ohio St. 276; Turner v. Turner, 17 Ohio St. 449.)

One ground of the motion in this case was that the findings are not sustained by sufficient evidence and are contrary to law. The other grounds were that the court refused to make special findings of fact and law, upon request; error in the admission of testimony; and newly discovered evidence. It is clear that all of these alleged errors were such as are properly assigned as grounds for new trial, and that to be considered here they must have been properly presented to the court below by such motion, which must have been overruled, and an exception reserved thereto.

The case of Fleischman v. Shoemaker, 2 Ohio C.C. 152, is cited as holding that a journal entry showing the exception to the overruling of the motion sufficiently brings the same into the record without its appearance in the bill of exceptions. It is true that it is so held in that case decided by the Circuit Court for the First Circuit in Ohio. But the case goes even beyond that and holds, as we understand, that it is not necessary in such case that the motion itself should be embraced in the bill. The court say that the motion for new trial is a part of the record in the cause, and the assertion is based upon Section 5334 of their statute, which is like Section 3775 of the statutes of this State. It is said by the court that the statute requires "all verdicts, orders and judgments, with the exceptions taken thereto, to go upon the journal of the court." The statute does not expressly require the exceptions to the orders to be entered on the journal; hence the statement of the court to that effect is evidently to be understood as its construction of the statute.

Section 3772, Revised Statutes, requires that: "All judgments and orders must be entered on the journal of the court, and specify clearly the relief granted or order made in the action." And it is provided by Section 3775 as follows "The records shall be made up from the petition, the process, the return, pleadings subsequent thereto, reports, verdicts, orders, judgments, and all material acts and proceedings of the court." Upon these statutes this court has held in several cases that a motion for new trial is not a part of the record unless incorporated in a bill of exceptions. (Johns v. Adams, 2 Wyo. 194; Garbanati v. Board, 2 Wyo. 257; ...