McCarthy v. Watrous
| Citation | 28 N.W. 586,69 Iowa 260 |
| Parties | MCCARTHY v. WATROUS AND OTHERS. |
| Decision Date | 21 June 1886 |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Linn circuit court.
This is an action to recover damages for an alleged personal injury. The plaintiff was in the employ of defendants as a miller in their flouring-mill at Cedar Rapids. He alleges that the defendants negligently permitted certain of their machinery and gearing to be uncovered, and that, in the discharge of his duty as such employe, the plaintiff had his hand drawn into the exposed gearing, and the four fingers of said hand were mutilated so that their amputation became necessary. There was a trial by jury, and a verdict and judgment for plaintiff. Defendants appeal.I. N. Whittam, W. G. Thompson, and Rickel & Bull, for appellants.
J. J. Ney and F. C. Hormel, for appellee.
A motion for a new trial of the case was overruled on the thirtieth day of January, 1885. An exception to the overruling of the motion was entered of record, and the further entry was made that the defendants were allowed 60 days from that date to present and file their bill of exceptions. No formal bill of exceptions has ever been filed, and appellee insists that, as the evidence has not been preserved as required by law, and as an examination of the evidence is necessary to determine the errors assigned, the judgment must be affirmed. As an answer to this the defendants claim that no bill of exceptions was necessary. It appears that the testimony of the witnesses was taken down at the trial by the official short-hand reporter. At the conclusion of the trial the original short-hand notes of the evidence were filed by the clerk. A transcript of the notes was made by the reporter, and filed in the clerk's office, on the second day of May, 1885. This transcript is an extension or translation of the original notes into long-hand. The short-hand reporter appended a certificate to this transcript, which states that it is a true transcript of the short-hand report of all the evidence; but it does not state that the transcript contains all of the rulings of the court in the trial of the cause. On the thirtieth day of September, 1885, the trial judge indorsed on said transcript of the evidence a certificate, of which the following is a copy:
“I hereby certify that the within transcript, together with the exhibits therein referred to, contains and embraces all the evidence introduced and given in the case of J. D. McCarthy v. W. D. Watrous & Co., tried at the time, and in the court, as in said transcript stated.
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¦September 30, 1885.¦C. HEDGES, Judge.”¦
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It is provided by section 2831 of the Code, as amended by chapter 209 of the Acts of the Eighteenth General Assembly, that bills of exception must be filed during the term, “or within such time thereafter as the court may fix; but in no event shall the time extend more than thirty days beyond the expiration of the term, except by consent of parties, or by order of the judge.” And it is provided by section 2835 that “when the decision is not entered on the record, or when the grounds of objection do not sufficiently appear in the record, the party excepting must reduce his exception to writing and present it to the judge for his signature.”
In the case of Lynch v. Kennedy, 42 Iowa, 220, and in other cases, it was held that a bill of exceptions must be signed within the time fixed by law, or the order of court, or agreement of the parties, and if not done within the proper time, the bill may be stricken from the record in this court upon motion. As the statute (Code, § 2832) provides that no stated form is required for a bill of exceptions, we have held that a certificate of the judge to the evidence, that it is all the evidence offered and received on the trial of the cause, is a sufficient compliance with the statute respecting bills of exceptions. State v. Fay, 43 Iowa, 651;Gibbs v. Buckingham, 48 Iowa, 96;McFarland v. Folsom, 61...
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