Hall Oil Company v. Barquin

• Decision Date: 10 April 1923
• Docket Number: 1041
• Citation: 213 P. 941,29 Wyo. 440
• Parties: HALL OIL COMPANY v. BARQUIN
• Court: Wyoming Supreme Court

213 P. 941

29 Wyo. 440

HALL OIL COMPANY v. BARQUIN

No. 1041

Supreme Court of Wyoming

April 10, 1923

ERROR to the District Court, Fremont County; HON. RALPH KIMBALL Judge.

Action by James Barquin and another against the Hall Oil Company and others. Judgment for plaintiffs and defendants bring error. Heard on motion to return bill of exceptions for correction.

(See also 28 Wyo. 164, 202 P. 1107.)

Motion Denied.

John J Spriggs, for the motion.

The application to withdraw the bill of exceptions for the purpose of correction should be granted under Supreme Court Rule 12, there being no counter-showing made, and also upon authority of Harris v. State (Wyo.) 153 P. 881. At any rate the lower court should have an opportunity to pass upon the question of the propriety of the amendment upon a hearing in which plaintiff in error may be heard--that would give plaintiffs in error their day in court. (Doran v Kennedy, 237 U.S. 362.) Defendants in error have not been guilty of laches; we feel that the application should be granted in order that the record may be made to speak the truth and that this court shall only review errors or alleged errors first presented to the lower court.

John D Clark and Hagens & Murane, contra.

The court reporter, by affidavit, states that he fully and completely transcribed his notes into the transcript, which is a part of the bill of exceptions on file in the case, at the conclusion of the evidence and after instructions were given. He further states that the date "December 2nd, 1920" was not in his notes at the time the exceptions were dictated but were inserted there sometime afterwards. This note cannot be taken as a note upon which to base an amendment to the bill; a note from which an amendment can be made must be a note made at the trial; affidavits are inadmissible in an appellate court to question the truth of a bill of exceptions appearing to have been regularly settled. (LeClair v. Hawley, 17 Wyo. 222.) Defendants in error were aware of the situation of which they complain prior to July 25th, 1921 but have delayed action until now. Their duty was to act with promptness. (Freeburgh v. Lamoureux, 13 Wyo. 454.) The bill cannot be amended from the memory of witnesses or of the trial judge after it has been signed and filed, but may be amended only by notes or memorandum in the possession of the court or judge such as would authorize an entry of a nunc pro tunc order. (Callahan v. Houck & Co., 14 Wyo. 201.)

John J. Spriggs, in reply.

The bill of exceptions was filed without permitting defendants in error to inspect it; the showing made by defendants in error is that a memorandum is in existence which contains the necessary material for amending the bill; the record of the reporter shows that the exceptions were dictated into the record on December 2nd, 1920; the reporter has no record of plaintiff's alleged request for leave to dictate the exceptions into the record after the trial; a motion for a new trial cannot be used as an instrument to embody exceptions not timely made. (Whitcomb v. Mason, 102 Md. 275, 4 L. R. A. (N. S.) 565; Secs. 5863-5865 C. S. 1920; Meadows v. Roberts, 21 Wyo. 48.) Time to reduce exceptions to writing does not mean time to make exceptions; it means time to reduce to writing exceptions actually taken at the trial; a mere statement at the trial by a party that he "excepts" is not sufficient assignment for review in the Supreme Court; specific grounds of exception made at the time must appear somewhere in the record; no rule of court can operate to authorize the taking of exceptions at a time different from that fixed by statute. (Russel v. State, 194 P. 245.)

POTTER, Chief Justice. BLUME, J., concurs. KIMBALL, J., did not sit.

OPINION

POTTER, Chief Justice.

This cause is before us at this time upon an application of the defendants in error for an order directing that the bill of exceptions be returned to the District Court to allow the same to be amended and corrected so that it may speak the truth, by inserting on a specified page (445) the date when the exceptions to certain instructions there mentioned "were dictated to the court reporter, to wit at about 8 o'clock a. m. on Dec. 2, 1920, the day following the rendition of the verdict." And it is stated in said application that the bill was not submitted to the defendants in error before its allowance, and that the suggested amendment is necessary in order that the bill shall correctly show the facts.

That motion is supported by an affidavit of counsel for defendants in error and also an affidavit of the court reporter. Said counsel's affidavit is to the effect that the bill as filed herein is incorrect and insufficient in that it does not state the time that the exceptions to the instructions were dictated by counsel for plaintiff in error; that said dictation occurred at about 8 o'clock in the morning of the day following the rendition of the verdict; that the bill had not been exhibited to defendants in error or their attorney prior to allowance and filing; and that there was no opportunity on their part to discover and they did not discover the suggested error until after the allowance and settlement of the bill. The affidavit of the court reporter, who took the evidence and prepared and certified to the transcript thereof and certain proceedings of the trial court found in the bill, is to the effect that his official stenographic notes show that the jury in said case retired to consider their verdict at the hour of 5:35 o'clock p. m. on December 1, 1920; that on December 2 "the following proceedings were had, to wit: that Mr. Murane dictated to the said reporter the exceptions to the instructions as they appear on page--- of the bill of exceptions." It may be assumed that the page intended, though left blank, is page 445 mentioned in the application. It is stated further in his said affidavit that he has no other record or memorandum showing exceptions to the instructions in this case, or any other proceedings concerning the same except as above set forth as having occurred on December 2, 1920; and he states also the fact shown by his official records that he took notes of the trial of the case of State v. Henry V. Johnson, which was commenced at the hour of 9.00 o'clock in the forenoon of December 2, 1920.

The plaintiffs in error have submitted in opposition to the application an affidavit of the said court reporter subscribed and sworn to a few days later than his affidavit above mentioned, in which it is stated substantially as follows: That his original notes of the trial in this cause were written with a fountain pen and ink; that later he correctly and fully transcribed all of said original notes, which transcription is contained in the bill of exceptions herein; that in the notes so transcribed and appearing in the bill in the last paragraph on page 445, commencing with the words "By Mr. Murane," he finds the words "Dec. 2, 1920;" that said date was not in said notes when Mr. Murane made the dictation shown on that and the following pages, but that it was written with lead pencil into affiant's notes after said dictation was made; that he is unable to state when the words and figures of the quoted date were written into his notes, "but is of the impression that he put them in at the time when he transcribed the notes for the bill of exceptions;" and that in his original notes of the testimony and proceedings of this case "he has no note or memorandum of the hour, the date or hour, when the exceptions to the instructions, dictated into the record by Mr. Murane, as shown on page 445 of the bill, were in fact dictated into the record." The said affidavit then continues as follows:

"The affiant further says that after the conclusion of all of the evidence in the case, and before the trial court gave its instructions to the jury, counsel for the parties appeared before the trial judge, to object to the several instructions given in the case, and consumed about an hour in argument in presenting such objections, and that exceptions were taken at the time to the several instructions given. That a number of criminal cases were waiting for trial, for which witnesses were in attendance, and that counsel for plaintiffs in error requested of the trial court leave to dictate said objections and exceptions into the record, and that the trial court thereupon gave counsel for plaintiffs in error permission to reduce their exceptions to writing and to dictate the same into the record after the instructions were given."

The part last above quoted was probably not intended as a statement of what is found in the reporter's notes, but as stating facts within his personal recollection; and we so understand it. The...