Harden v. Card
| Decision Date | 10 April 1906 |
| Citation | 14 Wyo. 479,85 P. 246 |
| Parties | HARDEN v. CARD |
| Court | Wyoming Supreme Court |
ERROR to the District Court, Carbon County, HON. DAVID H. CRAIG Judge.
On motion to strike the bill of exceptions, and dismiss the proceeding in error. The facts are stated in the opinion.
Motion to strike bill of exceptions and dismiss cause denied.
N. R Greenfield, for defendant in error. (In support of the motion.)
Where a statute provides a time within which a bill of exceptions must be settled or allowed, the bill must be settled or allowed within such time or it will not be considered.
It cannot be said that the incomplete bill filed and presented to the court on the 13th day of March, 1904, was any bill at all, nor could it be considered as such. Where only a part of a general bill of exceptions is presented within the time prescribed for preparation, no part of the bill can be considered. (Bell v. Murry, 13 Colo. App., 217; Earl v. Dresser, 30 Ind. 11; Bennett v. Marion, 101 Iowa 112; Sansome v. Myres, 77 Cal. 353; McFadden v. Owen, 150 Ind. 213; Wysor v. Johnson, 130 Ind. 270; White v. Gregory, 25 N.E. 806; January v. Super. Court, 73 Cal. 537.) A bill of exceptions will be disregarded by the appellate court when the record fails to show affirmatively that it was properly allowed and filed in the trial court and thereby made a part of the record, and these facts must be shown by the record proper, independent of the bill itself. Our statute, Section 3743, expressly provides that a bill of exceptions is to be filed only after it is allowed. There is no record whatever that it was ever allowed. (Rock Island v. Riley, 26 Ill.App. 171; Johnson v. County, 143 Ind. 363; Rubber Co. v. Mfg. Co., 63 Ohio St. 66; Winter v. Null, 31 W.Va. 450; Orton v. Noonan, 19 Wis. 350; Smith D. Co. v. Casper D. Co., 5 Wyo. 510.)
The trial judge certifies only to the evidence and not as to the exceptions, which is insufficient.
The clerk's endorsement shows that the bill was filed in his office on the 13th day of March. The same day the fragmentary bill was presented, and the only record that the bill was filed is from the recitals of the judge's certificate wherein he says that defendant asked leave to file the same with the papers in the case, which was accordingly done; and if it be held that the bill of exceptions in this case was filed at all, it surely must be considered as having been filed on the 16th day of May, 1905, the date it was presented as the completed bill, which of course was after time for filing and allowance had expired.
Our statute makes no provision for extending the time to reduce the exceptions to writing beyond the first day of the next succeeding term, but expressly provides that time cannot be given beyond that time. And if it were permissible under our statute to extend time, there would necessarily have to be some record of such extension other than by the recitals of the bill. (Smith D. Co. v. Casper D. Co., supra; Felch v. Mfg. Co., 61 Ohio St. 93; 2 Cyc., 1041, 1042.) In states where the time for preparing and allowing a bill of exceptions may be extended it cannot be done without notice to the adverse party. (Taylor v. Derby, 4 Colo. App., 109; Purcell v. Boston, etc., 151 Mass. 158; Hemphill v. Morrison, 112 N. C., 756; McKay v. Union R. Co., 13 Mont. 15.) The order giving plaintiff in error leave to withdraw the bill of exceptions from the files, if it can be called an order, fixed no time within which the bill should be completed. The decisions of this state upon the question as to the time within which a bill of exceptions must be made are all uniform and in support of the contention we advance, that time cannot be granted beyond the first day of the next term. (Rev. Stat. 1899, Sec. 3740; Schlessinger v. Cook, 8 Wyo. 484; Stirling v. Wagner, 4 Wyo. 5; McBride v. U. P. R. R., 3 Wyo. 248, 183; Conway v. Smith Mer. Co., 44 P. 940; Cantlin v. Miller, 78 P. 295.) The time fixed by the court for the settlement and filing of the bill of exceptions must be a definite time. And if the statute limits the time of extension, an order cannot be made giving longer time. (Lansing v. Coats, 18 Ind. 166; Smith v. Blakeman, 8 (Bush.), 476; Johnson v. Stivers, 95 Ky. 128; Carroll v. Pryor, 38 Ark. 283; Schlessinger v. Cook, 8 Wyo. 484.)
If it could in any way be said that the bill in this case was presented on the 13th day of March, 1904, it was nothing more than a skeleton bill and any transcript of evidence afterwards inserted cannot be considered. (Mosher v. Scofield, 55 Ill.App. 271; Barnes v. Turner, 129 Ind. 110; Walter v. Uhl, 3 Ind. App., 210; New Albany v. Iron Co., 141 Ind. 500; McMullen v. Polk Co., 4 Iowa 593; Morrison v. Lenhew, 17 Mo. App., 633; Morrison v. Schockley, 65 Mo. App., 179; R. Co. v. Wagner, 19 Kan. 335; Bruce v. Casey-Swasey Co., 75 P. 280, (Okl.); State v. Schoenwald, 26 Kan. 288.)
An assignment of error is a pleading and must be signed by the party or his counsel. (Peden v. Nolan, 45 Ind. 354; Thoma v. State, 86 Ind. 182; Sutherland v. Putnam, 24 P. 320 (Ariz.); Bogie-Badenoch Co. v. Boyden, 33 Ill.App. 252; Fordyce v. Dixon, 70 Tex. 694.) A pleading not signed by counsel or the party cannot be amended by adding signature for the reason that a pleading without a signature is no pleading and there is nothing to amend. (Carrington v. Hamilton, 3 Ark., 416; Steven v. White, 2 O. Dec., 107; Boyden v. Hoyt, 2 O. Dec., 376; Moore v. Emmert, 21 Kan. 1; Fisher v. State, 73 Ga. 595; Johnson v. State, 24 S.W. 94; People v. Welsey, 98 Cal. 35.)
McMicken & Blydenburgh, and N. E. Corthell, for defendant in error, contra.
The District Judge signed and allowed the bill in this case and it is to be presumed that this action was a rightful exercise of the power unless the contrary appears or the power does not exist.
It would be sufficient doubtless to suggest that the facts might be such that the action was justified. But, in order to inform the court more particularly and authentically, the particular circumstances under which the delay occurred in perfecting and allowing the bill are set forth in an affidavit which is presented in opposition to the motion, and to afford a basis upon which this court may proceed for the amendment of the record if such amendment is thought to be material.
In construing our statute the flood of cases cited by the defendant in error is not conspicuously helpful, especially in view of the want of discrimination betrayed by the detailed examination of these cases. The first proposition advanced relates to the statutes which fix a time within which bills of exception must be "settled" or "allowed." Journal entry showing allowance of the bill is not necessary. (McBride v. Ry. Co., 3 Wyo. 183.) The certificate of allowance is sufficient. (Bank v. Lowrey (Neb.), 54 N.W. 568.)
The term "skeleton bill" is used with reference to a bill which has been allowed and signed by the judge while in an incomplete condition, but containing definite and certain references to other matters to be subsequently inserted in or attached to the bill. It does not appear to be used anywhere with reference to a bill still in process of completion or perfection and remaining unsigned. (R. Co. v. Wagner, 19 Kan. 335.) That the pages of the transcript are not numbered is not ground for dismissal. (Rule 12.)
A motion is not an assignment of errors. (R. S., 425.) It is not a pleading. (R. S., 3531, 3532.) The omission of a signature is not a fatal error of defect. (R. S., 2727, 3588, 3589.)
Manifestly the bill in this case was not true, in that it did not contain all of the evidence. We think the court acted literally in accordance with the statute in permitting the bill to be corrected and made complete and true. And it cannot be doubted that the spirit of the statute, whose object is to perfect a true record of the case, was faithfully followed.
It has not been the practice to give this statute an interpretation which narrows its scope and jeopardizes the remedy. Before the amendment authorizing the bill to be presented to the judge in vacation and while the statute required that it should be presented to "the court," it was held that no technical meaning was to be attached to this expression, and that presentation to the judge was sufficient. (McBride v. Ry. Co., 3 Wyo. 183.)
And where the judge had passed out of office it was held that he was...
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