State ex rel. Dimond Brothers v. Craig

• Decision Date: 15 April 1907
• Citation: 89 P. 584,15 Wyo. 439
• Parties: STATE EX REL. DIMOND BROTHERS v. CRAIG, DISTRICT JUDGE
• Court: Wyoming Supreme Court

89 P. 584

15 Wyo. 439

STATE EX REL. DIMOND BROTHERS v. CRAIG, DISTRICT JUDGE

Supreme Court of Wyoming

April 15, 1907

ORIGINAL proceeding in mandamus brought in the name of the State on the relation of Dimond Brothers, a partnership against David H. Craig, as District Judge, to compel the settlement and signing of a proposed bill of exceptions. The case was heard upon demurrer to the answer. The facts are stated in the opinion.

Demurrer overruled.

J. H Ryckman, for relators.

The principal errors complained of as having occurred upon the trial of the cause in question arose upon objections to testimony. The exceptions as to those matters are stated in the proposed bill by showing the questions objected to and the answers thereto. Counsel's affidavit as to the correctness of these matters is not sufficiently overcome by the judge's denial of knowledge of the matters thus shown. A court should facilitate rather than obstruct a litigant in the review of alleged errors. (Gutierrez v. Hebbard, 39 P. 529; Flagg v. Puterbaugh, 98 Cal. 136.) The defendant's denial that the exceptions were transcribed with so much of the evidence as was necessary to fully explain them is a negative pregnant, and amounts to an admission. (1 Kinkead Code Pl., Sec. 73.) A transcript of all the evidence is unnecessary, since the relator abandons his contention that the evidence was not sufficient to sustain the judgment. (R. S. 1899, Sec. 3741.) The answer is insufficient. (R. S. 1899, Sec. 3743; Swartz v. Nash, 25 P. 873; State v. Hawes, 43 Ohio St. 25; Gorgas v. Blackburn, 14 O., 252; Sansome v. Court, 80 Cal. 483; People v. Sprague, 53 Cal. 423; Ah Lip v. Gong Choy, 13 Ore. 205; Elliott App. Proc., Sec. 812.)

C. W. Burdick and John W. Lacey, for defendant.

It appears by defendant's answer that he sought in every possible way to aid relator's counsel to obtain a complete bill. The demurrer admits the facts alleged in the answer. The difficulty has been caused by the laches of relator's counsel. The defendant desires to certify to a true bill, and is and has been ready to do all in his power to have such a bill perfected; he is, however, unable to attest the correctness of the proposed bill.

The certificate of the trial judge that he has no evidence of the truth of the statements in the bill is conclusive and cannot be traversed. (Platen v. Adams, 72 Ga. 199.) When the Judge has signed a bill which he believes correct mandamus will not lie to compel further action. (People v. Jameson, 40 Ill. 93; Shepard v. Peyton, J., 12 Kan. 616; State v. Todd, 4 O., 351; Creager v. Meeker, 22 Ohio St. 207.) The laches of the appellant and of his attorney will defeat the writ. (State v. Dyer, 99 Ind. 426; Sutton v. Valdosta Co. (Ga.), 42 S.E. 94; Parkman v. Dent (Ga.), 34 S.E. 559; State v. Cox (Ind.), 58 N.E. 849; Vason v. Gardner, 70 Ga. 517.) The judge must decide as to whether a sufficient portion of the evidence is in the proposed bill. (Brinson v. Callaway, 37 S.E. 177.) Here the attempt is really to have the bill amended. (People v. Anthony (Ill.), 21 N.E. 780. The reasons given by the defendant in his answer are sufficient to prevent the issuance of mandamus. (People v. Anthony, supra; Thornton v. Hoge, 23 P. 1112; Merrill on Mandamus, Sec. 190.)

We submit that the answer shows the action of the judge to have been careful, considerate and conscientious; that he has done all in his power in the matter, and that a full reason is shown for his refusal to sign the bill as true in all respects.

SCOTT, JUSTICE. POTTER, C. J., and BEARD, J., concur.

OPINION

SCOTT, JUSTICE.

This is a proceeding in mandamus, originally commenced in this court. From the pleadings it appears that the relator, a copartnership, was sued and judgment recovered against it in the District Court of Sweetwater County by Beckwith, Quinn & Company, a corporation. The cause was tried to a jury on October 28 and 29, 1904. The relator moved for a new trial. The motion was overruled and, upon request, time was allowed the relator within which to reduce its exceptions to writing and present them for allowance. Though it is alleged in the petition that the defendant refused to sign the bill of exceptions, it is alleged in the answer that within the time allowed the relator presented its proposed bill for allowance and the certificate thereto was signed by the defendant who presided at the trial and which certificate recites: "And the court having examined said bill of exceptions finds that he cannot allow or sign the same as presented, except as hereinafter stated, for the reason that the said bill of exceptions contains none of the evidence as given by the witnesses in said case in court, and as to the statement of counsel for defendants, as to abstract portions of evidence given by several witnesses, and as to remarks made by court, referred to by counsel in his said bill of exceptions, and as to the rulings of the court on certain questions of the evidence presented in the bill of exceptions, it is impossible for the court, without the evidence in the case, to pass upon the same as true or false, and without the evidence in the case it is impossible for the court to correct the said bill of exceptions; as to the exceptions herein stated as to the errors complained of in giving and refusing instructions in said case the court allows the same * * *." This proposed bill, though presented on May 1, 1905, and within the time allowed, was not signed until August 11, 1905, there being no corrections made to the bill between those dates. It is alleged in the petition that application was thereafter and on November 20, 1905, made to the defendant to correct the bill or to suggest wherein it should be corrected, and that such application was refused. The relator filed its petition in this court for an alternative writ of mandamus directed to and commanding the defendant to allow and sign the bill as presented or correct or suggest the corrections to be made to the bill or show cause why he should not do so. The writ was issued, the defendant made return and answer thereto, and to that answer the relator has interposed a demurrer on the ground that the facts stated therein are not sufficient to constitute a defense to the action.

1. The demurrer admits everything alleged in the answer. The court reporter who took the stenographic notes of the evidence died a few days after the trial and before the motion for a new trial was heard and decided. It appears from the answer that the evidence and exceptions thereto were not otherwise recorded upon the trial than by the official reporter; that defendant was requested by counsel for relator to furnish him the shorthand notes of the stenographer taken in the case, so that he might have them transcribed, and that defendant complied with that request. At the same time defendant informed the attorney that if he had any difficulty in getting the notes transcribed to return them and that he, the defendant, would try and get them extended; that no notice was given of such inability and that the proposed bill did not contain the evidence other than excerpts, part of which was in narrative form, nor a sufficient portion thereof to properly set forth the errors complained of and that it was impossible to attach any other or different certificate than the one attached and subscribed by him; that defendant had no knowledge that the relator had any memorandum of the evidence furnished and extended by the stenographer until November 23, 1905, when relator's attorney presented and requested him to sign the purported memorandum which was not certified to by the stenographer, and had not been presented to him before; that he was unable to say whether they were or were not furnished by the stenographer, and that if they were they were not sufficient to enable him to pass intelligently on the proposed bill, nor did they furnish sufficient data to enable him to correct or complete the bill, or to sign or attach thereto any other or different certificate than that which he had already attached and subscribed on August 11, 1905. The official stenographic notes furnished by defendant were retained by relator's attorney and were never returned to the defendant.

It was the relator's duty to prepare and present its exceptions. The burden was upon it not only to do so, but to present for allowance a true bill. (Sec. 3743, R. S. 1899; Callahan v. Houck, 14 Wyo. 201, 83 P. 372.) It was equally the duty of the defendant upon the presentation of the bill to examine it and if found correct to sign and allow the same; if incorrect to correct it so as to conform to the truth or to suggest the corrections to be made. Section 3743 in part says: "If true, it shall be the duty of the court, if presented in open court, or the judge of the court before whom the case was tried, if presented in vacation, to allow and sign it, whereupon it shall be filed with the pleadings as a part of the record, but not spread at large upon the journal. If the writing is not true the court or the judge in vacation shall correct it, or suggest the correction to be made, and it shall then be signed as aforesaid." Section 3741, Revised Statutes, is as follows: "No particular form of exceptions is required, and the exception must be stated, with the facts, and no more, and the whole as briefly as possible." The requirement of the last section is not satisfied with anything less than all the evidence bearing upon and which is necessary to explain the exception or error complained of. It will be noticed that Judge Craig did not refuse to sign the exceptions, but certified that there was no evidence in the bill to explain them. He alleges in his answer that he called the attention of relators to that fact, requested...