Palmer v. Allen.

• Decision Date: 14 October 1913
• Citation: 18 N.M. 237,135 P. 1173
• Parties: PALMERv.ALLEN.
• Court: New Mexico Supreme Court

18 N.M. 237

135 P. 1173

PALMER

v.ALLEN.

Supreme Court of New Mexico.

Oct. 14, 1913.

Syllabus by the Court.

A bill of exceptions will be stricken from the transcript on appeal, upon motion therefor, when no notice has been given the adverse party of the time and place of its proposed settlement and signing, as required by section 26, c. 57, S. L. 1907.

A bill of exceptions, in a case tried to a jury, must be settled and signed by the judge of the court in which the case was tried; and where the record fails to show that such bill of exceptions was signed by the judge, it will be stricken from the files, upon motion.

Where the assignment of errors is copied into appellant's brief, and the brief is served upon appellee's counsel, service of a separate copy of the said assignment of errors is not necessary.

Appeal from District Court, San Juan County; before Justice Abbott.

Action by J. M. Palmer against Frank B. Allen. Judgment for defendant, and plaintiff appeals. On motion to strike assignment of error. Denied.

A bill of exceptions in a case tried to the jury must be settled by the judge of the court in which the case was tried, under Laws 1907, c. 57, § 26.

Perkins & Main, of Durango, Colo., for appellant.

Edwards & Martin, of Farmington, for appellee.

ROBERTS, C. J.

Appellee has filed a motion to strike the bill of exceptions from the files in this case on two grounds: (1) Because appellant failed to give appellee five days' notice of his intention of applying to the judge of the court in which the cause was tried to sign and settle the bill of exceptions; and (2) that the said bill of exceptions was not signed and sealed by the judge of the court in which said cause was tried.

[1][2] Both grounds of the motion are seemingly well taken. Section 26, c. 57, S. L. 1907, in so far as material, reads as follows: “After such trial any party to the action may require the court stenographer to transcribe the whole or any part of his stenographic notes, and when the stenographer shall have transcribed his notes he shall file the same in the office of the clerk of the court in which the action in which they were taken was tried, and thereupon, either party to said cause desiring to have the same or other matters under section 25 of this act embodied in a bill of exceptions may give five (5) days' notice to the opposite party of his intention of applying to the judge of the court in which said cause was tried, to have the judge of said court sign and seal the same in proper form, as a bill of exceptions. Upon...