Internatonal Harvester Co. v. Jackson Lumber Co.

• Decision Date: 21 January 1918
• Docket Number: 872
• Citation: 25 Wyo. 367,170 P. 6
• Parties: INTERNATONAL HARVESTER CO. v. JACKSON LUMBER CO., ET AL
• Court: Wyoming Supreme Court

170 P. 6

25 Wyo. 367

INTERNATONAL HARVESTER CO. v. JACKSON LUMBER CO., ET AL

No. 872

Supreme Court of Wyoming

January 21, 1918

ERROR to District Court, Sweetwater County; HON. JOHN R. ARNOLD Judge.

Action by the International Harvester Company of America against the Jackson Lumber Company, a co-partnership, and others. From a judgment for defendants, plaintiff brings error, and defendants move to strike the bill of exceptions from the record and to dismiss the proceedings.

Bill of exceptions stricken and proceedings in error dismissed.

Walter B. Dunton and D. A. Reavill, for the motion.

No order was made granting plaintiff time to prepare and present the bill of exceptions, nor even a request by a plaintiff for time to do so. The bill must be stricken. (Smith Co. v Drug Co., 5 Wyo. 510.) The only exception to the rule is a decision made in chambers out of the county in which the action is pending. (Sections 4464, 4444, 4466, Comp. Stats 1910.) The rule also was recognized in Cantlin v. Miller & Chapman, 13 Wyo. 109; Syndicate Co. v Bradley, 6 Wyo. 177; Schlessinger v. Cook, 8 Wyo. 487. Without the evidence before this court, the record presents no evidence that can be reviewed.

D. A. Reavill, by supplemental brief for defendants.

Since the filing of defendants' brief, plaintiff in error has filed an affidavit, the evident purpose being to claim, that the court stood in recess and that no order allowing time for the presentation of a bill of exceptions was necessary; but the court adjourned without continuing until some definite date, therefore the term was ended. The trial term ended April 1st, 1916. (Lookabaugh v. O'Keene, 106 P. 844; Baker v. Newton, 112 P. 1034; Irwin v. Irwin, 37 P. 551.) Time for preparing and presenting exceptions to writing could not be beyond the first day of the next succeeding term. (Section 4595, Comp. Stats. 1910.) Under the common law the practice required the exception to be presented immediately to the judge for his signature; the statutes do away with the practice and permit the fixing of the time for preparation and presentation of the bill.

BEARD, JUSTICE. POTTER, C. J., and BLYDENBURGH, J., concur.

OPINION

BEARD, JUSTICE.

This case is before the court at this time upon the motion of defendant in error to strike the bill of exceptions from the record, and to dismiss the proceedings in error upon the grounds that the bill of exceptions was not presented for allowance within the time allowed by law; and was not so presented until after the filing of the petition in error.

The motion for a new trial was denied March 31, 1916, to which decision of the District Court in denying said motion the plaintiff at the time duly objected and excepted; but it does not appear either in the bill, or the certificate of the judge allowing the same, that time was asked or given within which to reduce the exceptions to writing and present the same for allowance. The bill was allowed July 10, 1916. The petition in error was filed April 4, 1916.

The contention of counsel for plaintiff in error is that as the bill was allowed during the term at which the motion for a new trial was denied, it was within time, and no order of the court giving time to reduce the exceptions to writing and to present the same to the court or judge for allowance was necessary.

The question must be determined by the proper construction to be placed upon the statutes in force at that time, and which must control. Those statutory provisions read as follows: (Section 4595, Comp. Stat. 1910.) "The party objecting to the decision must except at the time the decision is made; and time may be given to reduce the exception to writing, but not beyond the first day of the next succeeding term."

(Section 4598, id.) "When the decision is not entered on the record, or the grounds of objection do not sufficiently appear in the entry, or the exception is to the opinion of the court on a motion to direct a non-suit, to arrest the testimony from the jury, or for a new trial for misdirection by the court to the jury, or because the verdict, or if a jury was waived, the finding of the court, is against the law or the evidence, the party excepting must reduce his exception to writing and present it to the court, or to the judge thereof in vacation, within the time given for allowance. If true, it shall be the duty of the court, if presented in open court, or the judge of the court before whom the cause was tried, if presented in vacation, to allow and sign it, whereupon it shall be filed with the pleadings as a part of the record, but not spread at large upon the journal. If the writing is not true the court or judge in vacation shall correct it, or suggest the correction to be made, and it shall then be signed as aforesaid."

The Legislature has prescribed rules of construction of statutes. (Section 3617, Comp. Stat. 1910.) "The construction of all statutes of this state shall be by the following rules unless such construction shall be plainly repugnant to the intent of the Legislature: 1. Words and phrases shall be taken in their plain or ordinary and usual sense, but technical words and phrases having a peculiar and appropriate meaning in law shall be understood according to their technical import." The rule was considered in Rasmussen v. Baker, 7 Wyo. 117, 128, 50 P. 819, 821, 38 L. R. A. 773, where it was said: "If the language employed is plain and unambiguous there is no room for construction." (Citing and reviewing authorities.) Such also is the rule in the absence of a statute on the subject, and has been so repeatedly stated by the courts and text-writers that the citation of authorities would seem to be superfluous. It is clearly and concisely stated in Lake County v. Rollins, 130 U.S. 662, 670, 9 S.Ct. 651, 652, 32 L.Ed. 1060: "To get at the thought or meaning expressed in a statute, a contract or constitution, the first resort, in all cases, is to the natural signification of the words, in the order of grammatical arrangement in which the framers of the instrument have placed them. If the words convey a definite meaning which involves no absurdity, nor any contradiction of other parts of the instrument, then that meaning, apparent on the face of the instrument, must be accepted, and neither the courts nor the Legislature have any right to add to it or take from it. (Newell v. People, 7 N.Y. 9, 97; Hills v. Chicago, 60 Ill. 86; Denn v. Reid, 35 U.S. 524, 10 Pet. 524, 9 L.Ed. 519; Leonard v. Wiseman, 31 Md. 201, 204; People v. Potter, 47 N.Y. 375; Cooley, Const. Lim. 57; Story on Const., Sec. 400; Beardstown v. Virginia, 76 Ill. 34.) So, also, where a law is expressed in plain and unambiguous terms, whether those terms are general or limited, the Legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction. (United States v. Fisher, 6 U.S. 358, 2 Cranch 358, 399, 2 L.Ed. 304; Doggett v. Florida Railroad, 99 U.S. 72, 25 L.Ed. 301.)" Applying that rule to the language of the sections of our statute under consideration, we see but little room for controversy as to the proper construction to be placed thereon. The words in Section 4595, "and time may be given to reduce the exception to writing," implies that the exception must be reduced to writing at the time, unless further time is asked and...