Hamilton v. Diefenderfer

• Decision Date: 26 March 1912
• Docket Number: 676
• Citation: 122 P. 88,20 Wyo. 138
• Parties: HAMILTON v. DIEFENDERFER
• Court: Wyoming Supreme Court

122 P. 88

20 Wyo. 138

HAMILTON v. DIEFENDERFER

No. 676

Supreme Court of Wyoming

March 26, 1912

ERROR to the District Court, Sheridan County; HON. CARROLL H PARMELEE, Judge.

Plaintiff in error moved to strike the bill of exceptions and to dismiss, whereupon defendant in error moved for leave to withdraw the bill for the purpose of amendment. The hearing was upon both motions. The material facts are stated in the opinion.

Metz &amp Sackett, and Clark & Clark, for plaintiff in error.

The assignment of error based upon the overruling of the motion for new trial is sufficient to bring before the court all the assignments of error set forth in such motion. Some of them do not demand for their consideration an examination of all the evidence. The assignments which relate to errors committed in the admission of evidence are sufficiently brought into the bill of exceptions in its present condition and therefore there is no sufficient reason alleged in the motion to strike the bill to justify sustaining it. Counsel for plaintiff in error might upon leave file a supplemental brief discussing assignments of error not referred to in the original brief.

The motion for leave to withdraw the bill for amendment was filed in apt time. When the defect alleged was first called to the attention of counsel the bill was on file in this court. Permission to withdraw it for the purpose of amendment cannot possibly prejudice the defendant in error as to any of his just rights, while a refusal of such permission might result in grave injustice to the plaintiff in error. The showing made by the affidavits in support of the application to withdraw the bill sufficiently discloses that there is ample data for the district court to make the amendment in full compliance with the rule relating to an amendment of a judicial record after the expiration of the term. The showing is also sufficient to justify granting leave to withdraw the bill. (Ry. Co. v. Walsh, 37 N.E. 1001; Callahan v Houck, 14 Wyo. 201; Comp. Stat. sec. 944.)

Enterline & LaFleiche, for defendant in error.

The bill of exceptions is insufficient to authorize a consideration of the only assignments of error discussed in the brief of plaintiff in error, since all of the evidence is necessary to be considered in disposing of such assignments, and the bill fails to show that it contains all the evidence. (Loan & Trust Co. v. Holliday Co., 3 Wyo. 386; Wheaton v. Rampacker, 3 Wyo. 441; State v. Snearly, (Wyo.) 107 P. 389.) The court cannot say whether or not a judgment rests upon adequate proof unless all of the evidence is in the record. (Callahan v. Houck, 14 Wyo. 201.)

The motion of defendant in error to withdraw the bill for amendment should be denied, for the reason that it appears that the defect is due to the laches or carelessness of counsel for plaintiff in error. A rule which would permit the bill to be withdrawn at this time for the purpose of amendment would destroy the finality of appellate proceedings and in effect permit a bill of exceptions to be perfected at any time, and in any way. The motion to withdraw was not filed within a reasonable time.

OPINION

PER CURIAM.

The defendant in error filed a motion in this case to strike the bill of exceptions from the files on the ground that it fails to show that it contains all the evidence, and that the only point discussed in the brief of the plaintiff in error is the sufficiency of the evidence to sustain the judgment. The plaintiff in error filed a motion supported by affidavit for leave to withdraw the bill for the purpose of returning the same to the district court and having the certificate thereto amended so as to clearly show that the bill contains a full, true and correct transcript of all the evidence submitted, offered or received upon the trial of said cause and another cause which was tried at the same time upon a stipulation consolidating the two causes for trial. Both motions have been submitted for our decision. It appears that the bill of exceptions was allowed and filed in the district court on December 3, 1910; that the petition in error was filed in ...