McBride v. Union Pac. Ry. Co

• Decision Date: 11 June 1888
• Citation: 18 P. 635,3 Wyo. 183
• Parties: McBRIDE v. UNION PAC. RY. CO
• Court: Wyoming Supreme Court

18 P. 635

3 Wyo. 183

McBRIDE v. UNION PAC. RY. CO

Supreme Court of Wyoming

June 11, 1888

Error from district court.

Action by John McBride against the Union Pacific Railway Company. Judgment for defendant, and plaintiff petitions for a writ of error. Motions to dismiss petition and to strike the bill of exceptions from the record. Denied.

Motion overruled.

MAGINNIS C. J. CORN, J., concurs. SAUFLEY, J., dissents.

OPINION

MAGINNIS, C. J.

Two motions are presented to the court for determination, --one a motion to dismiss the petition in error; the other, a motion to strike from the record the paper purporting to be a bill of exceptions. As both these motions are intended by defendant in error to raise the same questions, they may be disposed of together, although the motion to dismiss is really disposed of by the fact that there are errors complained of which appear upon the record other than those contained in the bill of exceptions.

It is alleged by defendant in error that the bill of exceptions contained in the certified transcript from the court below is not a proper bill of exceptions, for the reason that it was signed by the judge below in vacation; and, further, that no entry of its allowance and signature appears to have been made on the journal of the court below. It seems that the case was tried below at the May term, 1886, of the court, and that at that time, in accordance with section 2646, Rev. St Wyo., the court, by an order regularly entered, granted until the first day of the next term of the court to prepare and present a bill of exceptions. It is now contended by the defendant in error that this bill of exceptions was presented to the judge below on the 4th day of October, 1886 the same being after the adjournment of the said May term and before the November term of the court; that, it having been presented and signed in vacation, such presentation and signing are of no effect. This contention is based upon section 2649, Rev. St. Wyo., which provides that "when the decision is not entered on the records, or the grounds of objection do not sufficiently appear in the entry, * * * the party excepting must reduce his exception to writing, and present it to the court for allowance." The expression "to the court" seems to support counsel's contention; but we think an examination of the balance of the section, read in the light of its prototype from Ohio, will refute this view. The section continues: "If true, it shall be the duty of the majority of the judges composing the court, or of the judge or court before whom the case was or is being tried, 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." It will be noticed that it becomes the duty of the judge or court to allow and sign it. Bearing in mind that it was originally necessary for all exceptions to be allowed and signed at the time of trial; that, by judicial action, it afterwards became possible for such exceptions to be reduced to writing and signed during the term at which trial was had; and that now, by statute, such time has been extended in this territory until the second day of the next term of the court, --we apprehend there can be no difficulty in construing this section. Section 2646...