Perkins v. McDowell

• Decision Date: 31 January 1890
• Parties: PERKINS v. McDOWELL
• Court: Wyoming Supreme Court

23 P. 71

3 Wyo. 328

PERKINS v. McDOWELL

Supreme Court of Wyoming

January 31, 1890

Error to district court, Albany county.

Action by J. M. McDowell against Charles F. Perkins to recover money due for labor. Judgment for plaintiff, and defendant brings error. Affirmed. For former report, see ante, 203, 19 P. 440.

Judgment affirmed.

G. C Smith, for plaintiff in error.

Brown Blake & Arnold, for defendant in error.

VAN DEVANTER, C. J. CORN and SAUFLEY, JJ., concurred.

OPINION

VAN DEVANTER, C. J.

This cause was heard by this court, and an opinion rendered therein, at a former term. 19 P. 440. No brief having been filed by the defendant in error, the imperfections in the bill of exceptions, which is contained in the record, were overlooked, and, the attention of the court having been called to this, a rehearing was granted. McDowell brought the action against Perkins in the district court for the county of Albany, to recover for services rendered. The defendant filed a general demurrer to the plaintiff's petition which was overruled; and later he filed a motion and affidavit for a change of venue to another county, which was also denied. Upon the trial the court found for the plaintiff, and rendered judgment in his favor. The defendant made a motion for a new trial, which was overruled, and, exception being taken to each of these rulings, Perkins brings the case to this court on petition in error.

A motion for a change of venue, with the affidavit supporting the same, and a motion for a new trial, are not pleadings, and can only become a part of the record by being incorporated into a bill of exceptions; but neither of these motions is set out therein. The bill recites the filing of the motion and affidavit for a change of venue, the ruling of the court, and the exception thereto, and then states: "Reference being had to said motion and affidavit of defendant, * * * the same is hereby made a part hereof." The recitals relating to the motion for a new trial are in the same form. It thus appears that the motion for a change of venue and for a new trial were never embraced in the bill of exceptions, and they are not now copied into the bill, as set forth in the record. It is not sufficient for the bill to recite that the motions are made a part thereof, for, as in this case, the recitals may not be true. Such a recital is not an equivalent for the doing of the act which is recited to have been performed. When properly embraced in the bill of exceptions, such motions become a part thereof by reason of being actually copied and set out in the bill at the time of the allowance and signing thereof, and not by virtue of any mere recital like the one in this instance. These motions not being made a part of the record, the rulings thereon cannot be considered by this court.

We now come to the question presented by the overruling of the demurrer to the petition. Our statute (...