Reynolds v. Campling
| Decision Date | 01 April 1895 |
| Citation | 39 P. 1092,21 Colo. 86 |
| Parties | REYNOLDS v. CAMPLING. |
| Court | Colorado Supreme Court |
Appeal from district court, Otero county.
Action between A. E. Reynolds and Mary B. Campling. From the judgment, Reynolds appeals. Motion to strike out bill of exceptions. Overruled.
The appellee moves to strike the bill of exceptions from the files in this case. It appears that within the time fixed by the court for the filing of the bill of exceptions the appellant tendered to the judge a bill including the transcript of the testimony as prepared by the appellant's private stenographer. At the trial the court stenographer was present, and took down the testimony and the rulings and decisions of the court made during the progress of the trial. The district judge refused to sign and seal the bill of exceptions because the same was not made by, and did not purport to be a transcript of the notes of, the official stenographer. Efforts were made by the attorney for the appellant to have the judge settle the bill of exceptions so tendered, and like efforts were made to induce the attorney for the appellee to examine such bill, and indicate any objection that he had thereto; but these efforts, through no fault of appellant, proved futile. Thereupon the attorney for the appellant filed with the clerk of the district court said bill of exceptions, supported by affidavits. He also duly notified the attorney for appellee of the filing of the same suggesting that the latter might file counter affidavits, if he saw fit. The attorney for the appellee filed no such counter affidavits, either in the district court or in the supreme court, nor has he ever taken any steps or made any move looking to a determination and settlement of the bill of exceptions in this court. This motion to dismiss the bill of exceptions was interposed after the printed abstract of the record was filed in this court, but before the filing of any briefs. Thereafter the appellant filed in this court his printed argument and brief, the appellee filed her answer thereto, and a brief in reply was filed by the appellant. More than six months after the case was thus submitted in this court the appellee first called up her motion to strike the bill of exceptions from the files.
Tyson S. Dines and Charles J. Hughes, for appellant.
A. F Thompson and L. B. Gibson, for appellee.
We think the motion should be denied, for two reasons:
1. It was...
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Pacific Mut. Life Ins. Co. of California v. Van Fleet
... ... is treated as complete in this respect. The motion comes too ... late, and the defect, if any, is waived by appellee. Reynolds ... v. Campling, 21 Colo. 86, 39 P. 1092; Ritchey v. People, 23 ... Colo. 314, 47 P. 272, 384. Besides, as shown in the ... supplemental abstract ... ...
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... ... Merriner v. Jeppson, ... 19 Colo.App. 218, 74 P. 341; Bd. Co. Com'rs v. Tulley, 17 ... Colo.App. 113, 67 P. 346; Reynolds v. Campling, 21 Colo. 86, ... 39 P. 1092; P. L. Ins. Co. v. Van Fleet, 47 Colo. 401, 403, ... 107 P. 1087 ... Appellants ... ask leave ... ...
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...bill comes too late. (Ripley v. Seligman, 88 Mich. 180; 2 Bouvier's Law Dict., 101, 102; Galliher v. Caldwell, 145 U.S. 371; Reynolds v. Kempling, 21 Colo. 86; Yates Kinney, 23 Neb. 648; Apgar v. Hiler, 24 N.J.L. 808; Patrick v. Weston, 21 Colo. 73; L. & C. Co. v. Wilson (Colo.), 77 P. 245;......