Freeburgh v. Lamoureux

• Decision Date: 15 June 1905
• Citation: 13 Wyo. 454,81 P. 97
• Parties: FREEBURGH v. LAMOUREUX ET AL
• Court: Wyoming Supreme Court

81 P. 97

13 Wyo. 454

FREEBURGH v. LAMOUREUX ET AL

Supreme Court of Wyoming

June 15, 1905

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

Heard on motion of plaintiff in error for leave to withdraw the record, for the purpose of applying to the court below to amend the bill of exceptions.

Motion denied.

N. E Corthell, for plaintiff in error.

The proposed amendment will state facts, and will agree with the journal entry, a transcript of which is on file in this court. It would appear, therefore, that if there can be a proper case for amendment of this kind, the present case meets every requirement. An appellate court may avail itself of authentic matters outside of the record, subsequent to the decree, for certain purposes. (Ridge v. Marker, 132 F. 599.) The practice invoked by the present motion is the appropriate method of obtaining an amendment to the bill of exceptions after the same has been filed in the appellate court. (3 Cyc., 141-143.) It is impossible to formulate a general rule as to what lapse of time will cause denial of a motion of this kind, or what circumstances will be considered as showing inexcusable laches. It would seem that each case must be determined upon its own facts. We think that the doctrine of laches in this connection has been abused in some courts by reason of the crowded condition of the docket, and that the true origin and scope of the doctrine has been lost sight of. Laches is really a closely related doctrine to that of estoppel. It is a doctrine by which courts of equity refuse to lend their aid to a plaintiff who has unreasonably delayed in seeking relief, under circumstances where delay has operated to the disadvantage of the opposite party. It is a doctrine created to work final and substantial equity, and not to prejudice claimants seeking a just remedy by fair and reasonable means. Upon the facts in this case and the former proceedings, and the attitude of the defendant in error, who asked frequent extensions of time for filing briefs, we think it should not be held that the application for the withdrawal of the record to amend the bill comes too late. (Ripley v. Seligman, 88 Mich. 180; 2 Bouvier's Law Dict 101, 102; Galliher v. Caldwell, 145 U.S. 371; Reynolds v. Kempling, 21 Colo. 86; Yates v Kinney, 23 Neb. 648; Apgar v. Hiler, 24 N.J.L. 808; Patrick v. Weston, 21 Colo. 73; L. & C. Co. v. Wilson (Colo.), 77 P. 245; Campbell v. Campbell, 118 Iowa 131; McKenzie v. Knight, 29 Colo. 485; Manhatton Co. v. Osgood, 1 Cow., 65; Bank v. Knight, 18 Ind.App. 257; Bank v. Grunthal, 39 Fla. 388; Boyer v. Teague, 106 N. Car., 571; Brown v. Wardon, 44 N.J.L. 177; Redfield v. Brooks, 130 U.S. 623; Bein v. Heath, 142 U.S. 704.)

Gibson Clark, for defendant in error.

It is apparent that the plaintiff in error had full notice and knowledge of the fatal defects in the bill of exceptions more than two years before taking any steps for its correction. We submit that, even assuming the power of the court to make the correction in the bill by a nunc pro tunc order at this time, the application comes too late. In such a case as this the party seeking relief must be diligent in his efforts to have the correction made. (2 Ency Pl. & Pr., 308, 309; Powell's App. Proc., Secs. 208, 217, 219, 825; 3 Cyc., 140-143; Kneeland v. Gilman, 24 Wis. 40; Bank v. Lumber Co., 17 So. 832; Haberty v. State, 8 O. C. C., 262; Seig v. Long, 72 Ind. 18; Ins. Co. v. Eldred, 143 U.S. 293; Clark-Harris Co. v. Douthitt, 31 P. 422.)

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

OPINION

BEARD, JUSTICE.

This case is before this court at this time upon the motion of plaintiff in error for leave to withdraw the record for the purpose of applying to the District Court to have the bill of exceptions amended.

The case was appealed to this court in August, 1901, and was submitted upon the merits and taken under advisement upon plaintiff's brief, defendants having failed to file briefs, April 26, 1902. Before it was decided and on January 10, 1903, the defendant, Lamoureux, obtained an order permitting him to file a motion to strike the bill of exceptions from the record for the reason that it failed to state the ruling of the District Court upon the motion for a new trial, or that any exception was taken to the ruling upon that motion. This motion to strike the bill of exceptions was argued and submitted January 27, 1903, and on August 20 1903, an opinion was handed down sustaining the motion and striking the bill of exceptions from the record. (73 P. 545.) Nothing further was done in the case until April 18, 1905, when the case was called up by the defendant; whereupon, plaintiff asked and obtained permission to file a motion for leave to withdraw the record for the purpose of applying to the District Court to have the bill of exceptions amended so as to show that the motion for a new trial had been denied, and an exception taken to that ruling by the plaintiff. Th...