Posvar v. Pearce

• Decision Date: 07 February 1928
• Docket Number: 1473
• Citation: 37 Wyo. 509,263 P. 711
• Parties: POSVAR v. PEARCE, ET AL. [*]
• Court: Wyoming Supreme Court

263 P. 711

37 Wyo. 509

POSVAR v. PEARCE, ET AL. ^[*]

No. 1473

Supreme Court of Wyoming

February 7, 1928

ERROR to District Court, Natrona County; CYRUS O. BROWN, Judge.

Action by George W. K. Posvar against H. Pearce and another. Judgment for defendants, and plaintiff brings error. Heard on motion to dismiss.

Case dismissed.

Nichols & Stirrett, for the motion.

George W. K. Posvar, contra.

OPINION

Per Curiam.

A motion has been filed in this case to dismiss the proceeding in error for the reason that it appears from the bill of exceptions and the records in the case that there is nothing for the court to decide because of the fact that no motion for a new trial is embodied in the bill of exceptions, and that it does not appear therefrom what was done with the motion, or that any exception was taken to the action of the court overruling it.

In some cases, as pointed out in Schmidt v. Bank, 29 Wyo 260, 212 P. 651, proceedings in error may be reviewed without a bill of exceptions, and hence without a motion for a new trial being embodied therein, as, for instance, where the assignment of error is that the petition fails to state a cause of action, or where the error assigned is that the court wrongly sustained a demurrer to the petition. In other instances, as pointed out in the same case, a bill of exception does not need to contain a motion for a new trial, as, for example, to obtain a review of a motion to dissolve a temporary injunction or a motion to discharge an attachment. No motion for a new trial is required in such cases. The case before us is no such case, but is a case which comes under the third class of cases mentioned in Schmidt v. Bank, supra. One assignment of error is that the court erred in rendering judgment against plaintiff in error without pointing out wherein the error consisted. Another assignment is that the court erred "in any and all other rulings, if any." These assignments of error are too indefinite to be noticed by this court. Chicago & N.W Ry. Co. v. Ott, 33 Wyo. 200, 209, 237 P. 238, 238 P. 287; Nelson v. Cons. E. & M. Co., 32 Wyo. 181, 231 P. 397, and cases cited. Another assignment of error is that the court erred in sustaining the motion dismissing this case because the plaintiff had no interest therein; another, that the court erred in rendering judgment herein, for the reason that it is contrary to law and the evidence; about 21 of the assignments relate to the admission or exclusion of evidence or the ruling of the court thereon. None of these errors are apparent on the face of the record proper, but were such as were properly assigned as ground for new trial. Freeburgh v. Lamoureux, 12 Wyo. 41, 73 P. 545; School Dist. No. 3 v. Western Tube Co., 5 Wyo. 185, 38 P. 922; Wolcott v. Bachman, 3 Wyo. 335, 23 P. 72, 673. The last assignment of error is that the court erred in overruling the motion for a new trial. It is clear, accordingly, that Rule 13 of this court applies to all of the assignments of error. That rule states as follows:

"Nothing which could have been properly assigned as a ground for a new trial in the court below will be considered in this court unless it shall appear that the same was properly presented to the court below by a motion for a new trial, and that such motion was overruled and an exception was at the time reserved to such ruling; all of which shall be embodied in the bill of exceptions."

Twenty-three years ago, this court in the case of Boulter v. State, 6 Wyo. 66, 42 P. 606, said:

"For nearly a quarter of a century, the practice has been followed, as directed by the rules and decisions of this court, to insert a motion for a new trial in a bill of exceptions, certified to by the judge, and not to recognize or consider any matters on appeal, arising during the trial, which were not a part of the record proper, except such as were embodied in a bill of exception. Our rule is but a general doctrine that a motion for a new trial must be incorporated in a bill of exceptions in order to be preserved for review on appeal."

The rule has been followed ever since, many of the cases on the subject being reviewed in Fitzpatrick v. Rogan, 28 Wyo. 231, 203 P. 245; see also Schmidt v. Bank, supra, and Jones v. Armeling, 31 Wyo. 22, 222 P. 569. Further, it is necessary that the bill of exceptions show what was done with the motion for a new trial. Schmidt v. Bank, supra; Bank of Chadron v. Anderson, 7 Wyo. 441, 53 P. 280; Freeburgh v. Lamoureux, 12 Wyo. 41, 73 P. 545. In other words, there are three defects in the bill of exceptions, in violation of the rule aforesaid: (1) No motion for a new trial is contained in the record; (2) The bill of exceptions does not show that the motion for a new trial was overruled, and (3) It fails to show that an exception was taken to the ruling of the court overruling a motion for a new trial.

Notwithstanding the fact that this is true and is fatal to the proceedings herein under the holding of this court consistently followed for half a century, plaintiff in error insists that the motion for a new trial is not required to be embodied in the bill of exceptions, and further asks this court, in spite of this attitude, that if we should hold that he is in error, we should then permit him to send the record back for correction. We cannot look with favor upon such practice. It is the duty of the parties to have the record in this court so that a decision upon questions submitted to us and arising on the record may be final, otherwise the case might be prolonged indefinitely. See City Nat. Bank v Watson, (Tex. Civ. App.) 178 S.W. 657. Waiving that point, however, should we now comply with the request so made? The matter of amending the record in the lower court was discussed by this court in the case of School District v. Western Tube Co., 13 Wyo. 304, 80 P. 155, where the court referred to two rules, one requiring that, in order to make such amendment some written memorandum or minute of the transaction must appear in the case, the other rule permitting such amendment upon any evidence, properly admissible and satisfactory in its weight and character. As to which should be the rule was not decided. In the case of Callahan v. Houck & Co., 14 Wyo. 201, 83 P. 372, a motion was made, as here, to send the record back for correction. It was held that the bill of exceptions cannot be amended or corrected from the memory of witnesses or the mere recollection of the trial judge, but only upon minutes or memoranda in the possession of the court or judge--a rule also stated in 4 C. J. 317. The court further seems to have laid down the rule that whether or not a record shall be returned for amendment is in the discretion of this court, but that where it appears that the omission therefrom of an essential fact is due to the laches of the party seeking relief, --as it undoubtedly is in this case--the discretion should be used against him. The court, accordingly, refused to have the record returned for amen...