Meadows v. Roberts

• Decision Date: 09 December 1912
• Docket Number: 702
• Citation: Meadows v. Roberts, 128 P. 624, 21 Wyo. 43 (Wyo. 1912)
• Parties: MEADOWS v. ROBERTS, AS EXECUTOR
• Court: Wyoming Supreme Court

128 P. 624

21 Wyo. 43

MEADOWS v. ROBERTS, AS EXECUTOR

No. 702

Supreme Court of Wyoming

December 9, 1912

ERROR to the District Court, Crook County; HON. CARROLL H PARMELEE, Judge.

The action was brought in the District Court by Andrew J. Parker against Ada Meadows, and from the judgment rendered in the cause the defendant brought error. Heard on motion for substitution as defendant in error of the executor of the will of Andrew J. Parker, deceased, and on motion of the substituted defendant in error to strike the bill of exceptions from the files. The material facts are stated in the opinion.

Motion granted.

Enterline & LaFleiche and Nichols & Nettlehorst, for defendant in error, in support of the motion to strike the bill of exceptions.

It appears from the affidavit of the court reporter that none of the exceptions taken upon the trial or the evidence were reduced to writing until after the November, 1911, term of the court, and more than six months after the time fixed by the original order for the presentation of the bill. It further appears that the reporter was not directed to furnish said transcript of the exceptions and evidence until a few days prior to said November term, and that had a transcript been ordered in proper time it would have been furnished so that the bill could have been completed and presented within the time originally allowed. Inability on the part of the exceptant to pay for a transcript within the time fixed for the presentation of the bill of exceptions is not a legal excuse for presenting a bill not containing the evidence. Where the procedure for an appeal or the taking of a cause to an appellate court on error is fixed by statute, it must be substantially complied with. The bill presented within the time allowed was not a bill, since it did not contain any part of the evidence explaining the exceptions. The facts do not bring the case within the principle decided in Harden v. Card, 14 Wyo. 479, and hence the court was without authority to permit the withdrawal of the bill for completion by inserting therein the entire transcript of the evidence which had not been ordered within the time allowed for presenting the bill. No legal excuse is shown for the delay in completing the bill.

Metz &amp Sackett, for plaintiff in error, contra.

When a bill of exceptions is presented, it is the duty of the court or judge to correct it, or suggest the necessary correction. In this case the court suggested the withdrawal of the bill for completion, and it was finally completed as soon as it could be done by the reporter, and then presented to the court for signature, when it was formally allowed, and the objections to allowance overruled. No time is fixed by statute for signing a bill after it is presented, but the time for allowance is largely within the discretion of the court or judge. It is entirely proper to permit a party to withdraw a bill for making the proper corrections. (Harden v. Card, 14 Wyo. 495, 496.) The power of a court or judge to settle a bill of exceptions includes the power to change, reduce, add to, or correct a bill which has been presented. Such power is necessarily discretionary. The purpose of a bill of exceptions in the lower court is to put into the record for the inspection of the court all the evidence, testimony and matters which appeared in the court below, to the end that the case on appeal may be heard upon the facts and the law applicable thereto. The order of the court in this case permitting the withdrawal of the bill and its correction by inserting the transcript of the evidence was clearly proper and is sustained by the decision in Harden v. Card, supra.

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

OPINION

BEARD, CHIEF JUSTICE.

This case was submitted to this court upon two motions. One by C. M. Roberts, executor, to be substituted as defendant in error; and the other by the defendant in error to strike the bill of exceptions from the files.

It appears that since the filing of the petition in error the defendant in error, Andrew J. Parker, died, and that C. M. Roberts has been duly appointed, and is now the duly qualified and acting executor of the will of Parker, deceased. The motion to substitute is not resisted; and it appearing to be a proper case for substitution, the motion will be granted.

The motion to strike the bill of exceptions from the record is based on the ground that it was not presented for allowance within the time allowed by law and fixed by the court. The motion for a new trial was denied November 25, 1910, and at that time the defendant below, Ada Meadows, plaintiff in error, was given until and including the first day of the next regular term of the court in which to present for allowance her bill of exceptions. The next regular term of the court commenced on the third Monday in May following being May 15, 1911. It appears by the certificate of the judge of the District Court that on May 15, 1911, the bill was presented to him for allowance; "that at that time the said bill of exceptions was not complete in that the same did not contain the transcript of the testimony given upon the trial of said cause; that permission was at that time given to the attorneys of the defendant to withdraw said bill of exceptions and to complete the same; that the facts in regard to said completion are correctly set forth in the affidavit of Charles L. Carter, Official Court Reporter, which said affidavit appears in this record; that the said bill of exceptions was afterwards completed and presented to me on the 5th day of January, 1912; that upon the 8th day of January, 1912, the plaintiff, by Enterline & LaFleiche, his attorneys, filed their written objection to the allowance of said bill of exceptions, supported by the affidavit of Charles L. Carter, above referred to." The matter was argued and taken under advisement by the court, and on May 3, 1912, the objection to the allowance of the bill was overruled and the bill as presented on January 5, 1912, containing the transcript of the evidence, was allowed and signed by the judge. The affidavit of Mr. Carter states: "That said trial commenced on the 25th day of May, A. D. 1910, and was concluded on the 26th day of May, A. D. 1910. That a few days after the trial of said cause and during the May, A. D. 1910, term of said court then being held in Crook County, Wyoming, counsel for the defendant, Ada Meadows, stated to affiant that a transcript of the evidence in said case was desired, but that the defendant did not have the money with which to pay therefor; that thereafter, to-wit: on or about just prior to the opening of the November, A. D. 1911, term of the above entitled court in and for the County of Crook, Wyoming, W. S. Metz, one of the attorneys for the...