Helm, Admr. v. Hoke Co.

• Decision Date: 30 January 1917
• Parties: Helm, Administrator v. Hoke Company.
• Court: Kentucky Court of Appeals

173 Ky. 525

Helm, Administrator v. Hoke Company.

Court of Appeals of Kentucky.

Decided January 30, 1917.

Appeal from Jefferson Circuit Court (Common Pleas Branch, First Division).

MARK BEAUCHAMP for appellant.

THUM & ROY for appellee.

OPINION OF THE COURT BY JUDGE CARROLL — Affirming.

In a suit by the administrator of James Helm, the appellant, against the appellee, Hoke Company, to recover damages for the death of James Helm, caused, as was alleged, by the negligence of the Hoke Company, there was a jury trial and judgment for the Hoke Company. The trial was had on March 6, 1914, and on May 23, 1914, the motion for a new trial was overruled and the administrator allowed sixty days in which to prepare and tender his transcript of evidence and bill of exceptions. On July 6, 1914, on motion of counsel for the plaintiff, the time for filing the transcript and bill was extended so that he should have one hundred and twenty days from May 23, 1914, within which to file them, this being the limit allowed by law in which to file them.

On September 19, 1914, and within the one hundred and twenty days, the plaintiff filed in court his bill of exceptions, in which he set out among other things that: "Plaintiff, to maintain the issue on his part, introduced the witnesses, who testified in chief for the plaintiff and their names and testimony with objections and exceptions thereto, rulings of the court thereon, and avowals of counsel, are shown in the official stenographer's transcript of evidence filed in this case, marked `A' and made a part of this bill of exceptions by reference as if copied herein in full."

Following this is a recital that at the conclusion of the plaintiff's evidence the motion of the defendant for a directed verdict in its behalf was overruled, to which the defendant excepted. The bill then recites that: "Defendant to maintain the issue on his part, introduced witnesses, who testified in chief for defendant, and their names and testimony and the objections and exceptions thereto, rulings of the court thereon and avowals of counsel, are shown in the official stenographer's transcript of evidence, filed herewith as part hereof, marked `A.' The plaintiff then introduced witnesses who testified in rebuttal. Their names and testimony, with objections and exceptions thereto, rulings of the court thereon and avowals of counsel, are shown in the official stenographer's transcript of evidence, filed herewith, marked `A.'"

The bill then recites that another motion made by counsel for the defendant was overruled, to which it excepted, and thereupon the plaintiff moved the court to give certain instructions which are set out, and the defendant moved the court to give certain other instructions set out, all of which instructions were refused and then follows the instructions given by the court, to which proper exceptions were saved.

At the conclusion of this bill, this appears: "Came the defendant, Vincent Helm, administrator of the estate of James Helm, deceased, and tendered this, his bill of exceptions, with a transcript, in duplicate, of the official stenographic report of the evidence, and, on his motion, said bill of exceptions is examined, signed, attested and approved by the court, and said transcript of evidence is examined, signed and attested and approved by the court, and it is now ordered that they be filed and made part of the record without being spread on the order book. It is now certified that this bill of exceptions, with said stenographic report of evidence, contains all the evidence in the case." And this bill at the end thereof was signed by the judge who presided at the trial.

It will be observed that this bill of exceptions tendered to and signed by the judge recites that the official stenographer's transcript of evidence, with all objections and exceptions and avowals relating thereto, was filed with the bill of exceptions as an exhibit marked "A," but as a matter of fact and truth no transcript of the evidence,...