Hawley v. LeClair

• Decision Date: 08 July 1909
• Docket Number: 593
• Citation: 102 P. 850,18 Wyo. 1
• Parties: HAWLEY ET AL. v. LeCLAIR
• Court: Wyoming Supreme Court

102 P. 850

18 Wyo. 1

HAWLEY ET AL. v. LeCLAIR

No. 593

Supreme Court of Wyoming

July 8, 1909

ERROR to the District Court, Fremont County, HON. CHARLES E CARPENTER, Judge.

The facts are stated in the opinion.

Affirmed.

E. H Fourt, for plaintiffs in error.

An order denying a motion to strike a bill of exceptions from the files is a final order. (62 O. St. 202; Baxter v Coughlin, 80 Minn. 322; Rev. Stat. 1899, Sec. 4227.) A bill must be filed after allowance and is no part of the record until allowed and made such by proper order. (Sec. 3743.) The statute does not provide for depositing a bill with the clerk, but it must be presented to the court or the judge. (Sec. 3743; Sterling v. Wagner, 31 P. 1032.) The most that can be said for the plaintiff's bill is that it was presented on the first day of the term, which was after the period allowed. (McBride v. Ry. Co., 3 Wyo. 183; Roy v. U. M. Co., 3 Wyo. 417; Howard v. Bowman, 23 P. 68; Conway v. Smith Merc. Co., 44 P. 940; Harpending v. Height, 39 Cal. 199.) A bill that is not presented within the time allowed cannot be considered. (Cantillon v. Miller, 78 P. 295; Schwartz v. Davis, 74 P. 800; Sandstrom v. Smith, 84 P. 1060; State v. DeBogue, 73 P. 76; State v. Dyck, 75 P. 488.) The bill was filed without authority of law and such filing did not constitute a presentation to the court or judge, and when it was allowed the time for presenting it had expired, leaving the court without jurisdiction in the premises. (Miller v. Inv. Co., 83 P. 289; Van Why v. S. Pac. Co., 7 P. 485; Lamson v. Hayes, 82 P. 473; Morgan v. Thompson, 9 P. 564; Evans v. Baggs, 13 P. 207; Jennison v. Boos, id. 230; Newmark v. Marks, 28 P. 960; Rice v. West, 33 P. 706; Earle v. Dresser, 30 Ind. 11; Winter v. People, 51 P. 1006; Buela Marble Co. v. Dickson, 56 P. 814; Bell v. Munsy, 57 P. 488; Dun v. Travis, 26 P. 247.)

Stone, Winslow & Gudmundsen, for defendant in error.

Plaintiffs in error have failed to cite authority sustaining their procedure, and have failed to show what was before the trial court at the time it acted upon the motion. The bill of exceptions which was the subject of the motion below was not made a part of the record in this case, and hence there is nothing in the record to show the condition of the bill at the time of the motion and the ruling thereon. The petition in error of the plaintiff below was filed in this court April 13, 1908, and the motion to strike the bill was filed in the District Court June 13, 1908. At that time the District Court had no jurisdiction to entertain the motion, the cause having been removed to this court by proceeding in error. (3 Ency. Pl. & Pr. 499; Oliver v. Town, 24 Wis. 512; Tollensen v. Gunderson, 1 Wis. 110.) After appellate jurisdiction has attached the only jurisdiction remaining in the lower court is to settle the bill. (3 Ency. Pl. & Pr. 462.) The settlement and signing of a bill is a determination by the trial judge that the proceedings preliminary thereto were regular. (Bergenthal v. Friebrantz, 48 Wis. 435; 3 Ency. Pl. & Pr. 513.) The filing mark properly shows the date of the presentation. (Swem v. Green, 9 Colo. 361; 3 Ency. Pl. & Pr. 486.) When the bill is seasonably tendered it is not invalidated by the failure of the judge to sign until after the time for presentation has expired. (3 Ency. Pl. & Pr. 374; Nilson v. Morse, 52 Wis. 240.) The bill having been signed and become part of the record, cannot be impeached by a subsequent certificate of the judge. (Dedric v. Hodson, 62 Ia. 566; Fuller v. Twine Co., 39 Kan. 492; Dufresne v. Weise, 46 Wis. 290.) Contrary to the record, counsel for plaintiff in error says that the bill was merely deposited with the clerk and not presented to the judge. That would be a proper practice in the absence of the judge. (Fechheimer v. Trounstiene (Colo.), 20 P. 704; People v. Lee, 14 Cal. 51.) And there seems to be no reason why the judge might not by specific direction make the clerk his agent to receive the bill, and if the judge then receives and accepts it as of the date delivered to the clerk, his action will be within the statute and the rights of the litigants preserved. (Reay v. Butler, 69 Cal. 572; Flynn v. Cottle, 47 Cal. 527.)

POTTER, CHIEF JUSTICE. BEARD, J., and SCOTT, J., concur.

OPINION

POTTER, CHIEF JUSTICE.

This is a proceeding in error for the review of an order of the District Court in Fremont County overruling a motion of the plaintiffs in error to strike from the files the bill of exceptions of the defendant in error. The plaintiffs in error were defendants below and upon a trial of the cause recovered judgment against defendant in error, the plaintiff below. In further referring to the parties the plaintiffs in error will be referred to as defendants, and the defendant in error as the plaintiff. Upon the overruling of the plaintiff's motion for a new trial an order was entered granting him until and including April 15, 1908, within which to reduce to writing, prepare, present and file his bill of exceptions. Thereafter the plaintiff prepared and procured the allowance of a bill of exceptions upon which is endorsed over the signature of the trial judge the following: "Presented to the court this 15th day of April A. D. 1908 and taken under consideration." The bill is also endorsed by the clerk of said District Court as filed April 15, 1908. Near the close of the bill and immediately preceding the certificate of the judge allowing it appears a statement that within the time provided by law and fixed by the order of the court the plaintiff presents and tenders to the judge "this his bill of exceptions." Following that statement is a prayer that said bill be settled, allowed and signed by the judge before whom the cause was tried and made a part of the record of said cause. Immediately following such prayer is a statement signed by the judge in these words: "Presented to me this 15th day of April A. D. 1908." The certificate of the judge showing the settlement and allowance of the bill is dated April 15, 1908, and recites that the bill was reduced to writing within the time provided by law and allowed by the court for that purpose, and that it was then before the said judge on motion of the attorneys for the plaintiff that the same be settled, allowed and signed and made a part of the record in said cause.

In the bill of exceptions taken by the defendants upon the order overruling their motion to strike the plaintiff's bill the following facts are stated: That the plaintiff, having prepared his bill of exceptions, filed the same in the office of the clerk of said court on April 15, 1908, and that the clerk endorsed the same as filed on said day; that the judge was absent from Fremont County from and after April 1, 1908, until June 10, 1908, when the regular June term of said court convened, and the judge at that time being present, "the judge of said court allowed, signed and settled said bill of exceptions as of the date of April 15, A. D. 1908, the day when the same was filed in the office of the clerk of this court, said judge holding that, in his absence from said county, the filing of said bill of exceptions in the office of the clerk of said court was a presentation to him for allowance within the proper time." It thus appears that plaintiff's bill was actually settled, allowed and signed on June 10, 1908, although the date of such allowance is stated on the face of the bill as April 15, 1908, the date when it had been left with the clerk and marked filed by him, and that the judge regarded and accepted the filing or deposit of the bill with the clerk as a due and proper presentation to him for allowance. It is not shown that the defendants interposed an objection to the bill or its consideration at or prior to the time of its allowance, or that they excepted to the ruling then made that the bill had been duly and properly presented for allowance. The only exception to be considered, therefore, is that taken to the overruling of the motion to strike the bill from the files.

The motion was filed on June 13, 1908, and was based upon the following grounds: (1) That prior to the date when the bill was filed in the office of the clerk the plaintiff had filed his petition in error in the Supreme Court and procured the issuance of a summons in error. (2) That at the time the bill was filed it had not been presented to the court or judge and had not been allowed or signed or ordered to be made a part of the record. The summons in error served upon defendants, which had been issued in the proceeding in error instituted by the plaintiff, was attached to the motion, but there does not appear to have been any evidence, by affidavit or otherwise, introduced upon the hearing of the motion. The facts as to the allowance and signing of the bill on June 10, 1908, the absence of the judge after April 1, and his holding with reference to the due presentation of plaintiff's bill, are not stated in the bill of defendants as evidence produced on the hearing of the motion, but the recital of such facts precedes the statement of the filing and ruling upon the motion, and was intended apparently to show what had occurred previous to the filing of the motion with reference to the allowed bill. The motion seems, therefore, to have been heard and determined upon the record, and the facts supposedly within the knowledge of the court and the parties.

The only objections to the bill here insisted on are that it was improperly filed before its allowance, and that the deposit or filing of the bill with the clerk did not constitute a presentation to the judge or court, and that the bill was therefore not presented until June 10, 1908, which was after the time allowed. It is clear that the first ground of the...