Myers v. Campbell

• Decision Date: 23 February 1899
• Citation: 78 N.W. 353,11 S.D. 433
• Parties: MYERS v. CAMPBELL, Judge.
• Court: South Dakota Supreme Court

78 N.W. 353

11 S.D. 433

MYERS v. CAMPBELL, Judge.

Supreme Court of South Dakota

February 23, 1899

Application by H. Ray Myers for a writ of mandamus to compel A. W Campbell, a judge of the circuit court, to settle and sign a bill of exceptions. Denied.

John Wood, for plaintiff. A. W. Wilmarth, for defendant.

HANEY J.

This is an original application for a writ of mandamus commanding a judge of the circuit court to settle and sign a bill of exceptions in a civil action. The applicant, who is plaintiff in such action, desiring to move for a new trial, and to have all of the evidence preserved in the record, proposed a statement containing 85 pages of typewritten matter, to which defendant interposed numerous objections and proposed numerous amendments. The reasons assigned for refusing to settle and sign the statement appear in the order of the learned circuit judge, which is made a part of the application, and which is as follows, omitting the title of the civil action: "The above matter coming on to be heard on the 29th day of November, 1898, upon the application of plaintiff to settle a bill of exceptions, upon a proposed bill duly served on October 11, 1898; and plaintiff appearing by John Wood, Esq., his attorney, the defendant appearing by A. W. Wilmarth, Esq., his attorney; and defendant filing written objections to the bill as proposed by plaintiff claiming and contending that it is untrue and incorrect in all its parts, and that the matters therein recited are not sustained by the evidence taken on the trial of the cause and it appearing that the said cause was tried in September 1897, and consumed two or more days; that no transcript of the evidence has been obtained from the official stenographer, of the whole or any part of the evidence taken on said trial, which could be consulted by the court in order to ascertain whether or not said proposed bill, or any part thereof, was sustained by the evidence taken on the trial of said cause; said proposed bill of exceptions having been made by plaintiff's attorney from memory, and from partial and incomplete minutes made by him during said trial; said plaintiff contending, as a reason for not procuring a transcript of the evidence, that he is financially unable to do so; it further appearing that the testimony taken in said cause is of unusual length, and the proposed bill covers 85 pages of typewritten matter,--from all of which it appears that this court cannot truthfully certify to any bill of exceptions without, in connection with the stenographer, spending several days' time in preparing a corrected bill, and getting from such stenographer, either by having him prepare it in longhand, or having him read the entire testimony in the cause, all of which would occupy the time of the court for several days, and the other duties of the court would not permit taking the time necessary for such work. For these reasons this court declines and refuses to settle a bill of exceptions in this cause in the present condition of the application. To all of which counsel for plaintiff at the time duly...