Schlessinger v. Cook

• Decision Date: 04 November 1899
• Parties: SCHLESSINGER v. COOK
• Court: Wyoming Supreme Court

58 P. 757

8 Wyo. 484

SCHLESSINGER v. COOK

Supreme Court of Wyoming

November 4, 1899

ERROR to District Court, Weston County, HON. JOSEPH L. STOTTS Judge.

Motion to strike bill of exceptions from the record.

M. B Camplin, and N. K. Griggs, for the motion, contended that the bill of exceptions was improperly allowed, and cited Roy v. U. M. Co., 3 Wyo. 417; Honard v. Bowman id., 311; Smith Drug Co. v. Casper Drug Co., 5 id., 510.

POTTER CHIEF JUSTICE. CORN J., and KNIGHT J., concur.

OPINION

POTTER, CHIEF JUSTICE.

A motion is made on behalf of defendant in error, to strike the bill of exceptions from the record of this cause.

It seems that the cause had been tried at a special term of the district court for Weston County, held in June, 1897, but judgment was withheld. This much is shown by the bill. The bill also discloses, as well as the record outside the bill, that at the regular March term, 1898, viz., on March 16, 1898, the cause was reopened for the admission of further evidence, on application of the plaintiff; that further evidence was then introduced, and a final judgment rendered in favor of the defendant (defendant in error here); that on the same day a motion for new trial was filed and overruled, and an exception taken to the order overruling the motion.

The certificate signed by the judge, appended to the bill of exceptions, recites that "on the first day of the regular term of the district court of Weston County, State of Wyoming, being the 19th day of September, A. D. 1898, I have examined the above and foregoing bill of exceptions," etc.; and on that date the bill was allowed. This is the only guide given in the certificate, bill, or record as to the time when the bill was presented. It may be assumed, and the fact probably is, that it was presented on the day named in the certificate, as the date of examination and allowance, which was the first day of the next regular term succeeding the term when the cause was finally submitted, judgment rendered, and motion for new trial overruled. There is nothing whatever to indicate that the bill was presented at an earlier date.

It is insisted by counsel for defendant in error that time was not asked, within apt time, to reduce the exceptions taken by the plaintiff to writing and present them for allowance, and that no valid order was made granting time beyond the term for that purpose.

The only showing, either in the bill or in the record elsewhere, that time was granted, is an order which appears in the record proper and is over the signature of the trial judge; and which, it is stated in the record, was "made in chambers." That order, after giving the title of the cause, reads as follows:

"On the application of the plaintiff by his counsel, R. H. Vosburgh, it is ordered and considered by the court that the plaintiff for the purpose of staying execution, as provided by Section 2649 of the Revised Statutes, enter into an undertaking in the sum of $ 1,000 to be approved by the clerk of this court, and that plaintiff have until the first day of the next term in which to prepare his bill of exceptions and present the same to the court or judge thereof for its approval."

The date of this chambers order is not given, nor is there anything either in the bill, or record proper, which furnishes any indication of the time when it was made. In the brief of counsel for the motion to dismiss, it is intimated that the term at which the judgment was rendered had finally adjourned before the order was secured. This statement is left uncontroverted by opposing counsel, they not having filed a brief or made any argument against the motion.

But we are not inclined to rest our decision upon a presumption that the order was made after the period during which the term was held, nor to determine whether such presumption would be warranted or permissible by the condition of this record. All the exceptions embodied in the bill were taken at a trial or during proceedings occurring in the court, in term time, and while the court was in actual session. Upon such a state of facts had the judge in chambers authority to make an effectual order granting time beyond the term, to reduce the exceptions to writing so as to validate a bill made up and presented after the term?

When a bill of exceptions is necessary to preserve an exception for review, or to incorporate it into the record, it must be reduced to writing, and presented to the court or judge "within the time given for allowance." (Rev. Stat. 1887, Sec. 2649, as amended by ch. 38 L. 1890, Sec. 1.) Section 2646, Revised Statutes of 1887, provides as follows:

"The party objecting to the decision must except at the time the decision is made; and time may be given to reduce the exception to writing, but not beyond the first day of the next succeeding term."

This court has heretofore held that the record must show the order giving time beyond the term, or if not made in term time, within the time fixed by the judge in vacation; and that the order must appear by an entry of record, a recital in the bill that time was given being held insufficient. Smith Drug Co. v. Casper Drug Co., 5 Wyo. 510, 40 P. 979. And that an order extending time must be duly entered and appear by the record proper, is the general holding of the courts. 3 Ency. Pl. & Pr., 475, and cases cited. Hancher v. Stephenson, 147 Ind. 498, 46 N.E. 916. By the statement found in the opinion in Smith Drug Co. v. Casper Drug Co., supra, to the effect that, if not made in term time, the record must show that the order was made by the judge in vacation, it was not intended that a judge in vacation could, by an order, grant time to reduce to writing, exceptions taken in term time.

The judgment upon which error was predicated in that case, was rendered by the judge in vacation, in dissolving an attachment, and what was said with respect to an order granting time made by a judge had reference only to exceptions taken in a proceeding before him in vacation.

Originally at common law, the rule was that each exception should be reduced to writing when taken; and tendered, settled, and signed by the trial judge on the trial. But to meet the convenience of bench and bar, the practice obtained without statute, of allowing the bill to be reduced to form after the trial, although in such cases it was required that the bill be signed, nunc pro tunc, so as to appear to have been taken and signed during the trial; and it was held to be fatally defective if it appeared otherwise. And, in such cases, also, that leave was granted to reduce to form after the trial, was usually implied from the signature to the bill. It was, however, generally required under that practice, that the bill be made up and presented during the term. Walton v. U.S. 22 U.S. 651, 9 Wheat. 651, 6 L.Ed. 182; Law v. Merrills, 6 Wend. 268; Hake v. Strubel, 121 Ill. 321, 12 N.E. 676; 3 Ency. Pl. and Pr., 462-465; McBride v. U. P. Ry. Co., 3 Wyo. 183, 18 P. 635.

In Ex parte Bradstreet v. Thomas, Chief Justice Marshall said: "The law requires that a bill of exceptions should be tendered at the trial. But the usual practice is to request the judge to note down in writing the exceptions, and afterward, during the session of the court, to hand him the bill of exceptions, and submit it to his correction from his notes." * * * "A practice, to sign it after the term, must be understood to be a matter of consent between the parties, unless the judge has made an express order in the term, allowing such a period to prepare it." 29 U.S. 102, 4 Peters 102, 7 L.Ed. 796.

As already shown, it is expressly provided by our statute, that time may be given, and beyond the term; and it is also now provided by statute, as it was formerly held by the Territorial supreme court, upon the construction of a former statute, that within the time granted, a bill may be presented to the judge in vacation.

If, in fact, the order under consideration was made after the term was closed, we think it entirely clear that it was void. When the term ended, the court lost its plenary power over the judgments and records of that term; and they could be changed only in the manner and by the methods provided by law. This is the rule at common law, and is quite generally followed in this country. 1 Brown on Jurisdiction, Sec. 306; O'Keefe v. Foster, 5 Wyo. 343, 352, 40 P. 525; Hake v. Strubel, 121 Ill. 321, 12 N.E. 676.

Our statute authorizes proceedings after the term, in certain cases, for the vacation or modification of judgments. And, under the statute, regulating bills of exceptions, the court may by an order granting time beyond the term, retain control of the record of a cause after the close of the term, for the purpose of incorporating therein matters which would not constitute a part of the record unless embraced in a bill. In the absence of a statute providing otherwise, it is clearly essential, to the retention of such control, that the order be made before the court has parted with it. Hence it must be made during the term. It requires no argument to show that if the court itself is without power, after the final adjournment of the term, to grant time where none has previously been allowed, the judge in chambers is equally without power to do so.

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