The Toltec Live Stock Company v. Gillespie

• Decision Date: 06 May 1912
• Docket Number: 699,698
• Citation: 123 P. 413,20 Wyo. 314
• Parties: THE TOLTEC LIVE STOCK COMPANY v. GILLESPIE, AS EXECUTRIX. THE TOLTEC LIVE STOCK COMPANY v. GILLESPIE
• Court: Wyoming Supreme Court

123 P. 413

20 Wyo. 314

THE TOLTEC LIVE STOCK COMPANY v. GILLESPIE, AS EXECUTRIX.

THE TOLTEC LIVE STOCK COMPANY v. GILLESPIE

Nos. 698, 699

Supreme Court of Wyoming

May 6, 1912

ERROR to the District Court, Albany County; HON. CHARLES E CARPENTER, Judge.

Maggie Howard Gillespie, as executrix of the last will and testament of Samuel W. Gillespie, deceased, brought an action against The Toltec Live Stock Company, and individually brought another action against the same defendant. Judgment was entered for plaintiff in each action after the filing of a remittitur reducing the amount of a judgment previously entered upon a verdict. The defendant prosecuted error. Both cases in the Supreme Court were heard on motion to strike the bill of exceptions and dismiss the proceeding in error. The other material facts are stated in the opinion.

H. V S. Groesbeck, for defendant in error, in support of the motion.

The exceptions were not reduced to writing and presented within the time allowed; most of the matter inserted in the bill was so inserted without the court's permission or suggestion. Indeed the perfected bill was not presented until about September 19, 1911, during the second term after the motion for new trial was overruled. There was no reason for the delay. The rule applied in Harden v. Card, 14 Wyo 479, is not applicable upon the facts in this case. The bill as presented was a mere fragment, and upon the facts recited by the judge in the certificate there is no possible excuse for a failure to present a complete bill at an earlier date. (LeClair v. Hawley, 17 Wyo. 222.) The recitals of the certificate must be taken as importing absolute verity.

No motion for new trial was filed as to the judgment entered after the filing of the remittitur. The proceeding in error was not commenced in time. (Compiled Stat., 1910, sec. 5122; Conradt v. Lepper, 13 Wyo. 99.)

N.E Corthell, for plaintiff in error, contra.

The defendant in error seems now to be complaining of the decision, ruling and action of the lower court, instead of the plaintiff in error, but it has not placed itself in a position to complain of any decision of the lower court in this case. (Baxter v. Coughlin, 80 Minn 322, 83 N.W. 190.) The statute relating to the presentation and allowance of bills of exceptions is to be liberally construed. (McBride v. U. P. Ry. Co., 3 Wyo. 183; Roy v. Union Mer. Co., 3 Wyo. 422; Stirling v. Wagner, 4 Wyo. 5; Conway v. Smith Merc. Co., 6 Wyo. 330; Jones v. Bowman, 10 Wyo. 53; Commissioners v. Shaffner, 10 Wyo. 185; Harden v. Card, 14 Wyo. 479; Comp. Stat., 1910, secs. 4263, 4437, 4438; Morgan v. R. Co., (Utah) 74 P. 523; McDaniel v. Columbus F. Co., 109 Ga. 284; Kalschmidt v. Weber, (Cal.) 79 P. 272; Cameron v. Calkins, 43 Mich. 191; Milwaukee v. Pabst, 64 Wis. 244; Dobson v. Dobson, 7 Neb. 296; State v. Gaslin, 32 Neb. 291; Greenwood v. Cobbey, (Neb.) 39 N.W. 833; Preble v. Bates, 40 F. 745; U. S. v. Adams, 6 Wall. 101.) It was the duty of the court or judge upon presentation of the bill, if incorrect, to have it corrected so as to conform to the truth. (State ex rel. v. Craig, 15 Wyo. 439.)

The work of the complaining party was fully performed in apt time. The exceptions themselves, which constitute the substance of the appeal, were written out and presented within the time allowed. Only the formal matters embodied in the transcript of the evidence remained to make the bill complete and perfect in its present form. Many of the exceptions do not depend upon the transcript of the evidence for their explanation. It would be a dangerous doctrine that an entire bill should be rejected and disregarded because the transcript of the evidence was not complete.

Not only is it possible for a motion for new trial to be held under advisement for more than one year "after the rendition of the judgment," but the present case shows that it is equally possible for a bill of exceptions to remain in process of settlement undisposed of for more than one year after the disposition of a motion for a new trial. There might be other illustrations showing the possibility of necessary delay in making and perfecting the record in the trial court which might exceed the period of one year allowed from the "rendition" of the judgment within which to commence the appellate proceeding. Where any of these things have occurred, the statute limiting the time for a proceeding in error should be so construed as to prevent any such delays from operating to the detriment of the complaining party by barring his right to take advantage of his exceptions through an appellate proceeding. (Conradt v. Lepper, supra; LeClair v. Hawley, 18 Wyo. 23; Inv. Co. v. Martin, 125 Mo. 117, 28 S.W. 434; Cunningham v. Roush, 141 Mo. 640, 43 S.W. 161; Wall v. Casualty Co., 86 S.W. 495.) The completing and settling of a bill of exceptions is not within the control of the party, but it is substantially a proceeding of the court itself and within its control and direction; hence a delay in signing does not prejudice the party. (Cahill v. Baltimore, 93 Md. 233, 48 A. 705; Wall v. Casualty Co., supra; Hillard v. Taylor, 114 La. 883, 38 So. 594; Cameron v. Calkins, 43 Mich. 191, 5 N.W. 292; Frickler v. Americus &c. Co., 124 Ga. 165, 52 S.E. 65.) There is an obvious analogy between the accrual of a cause of action in the court of original jurisdiction, and the accrual of a cause in the appellate court. (Caldwell v. State, 12 Wyo. 206.) The analogy is equally strong between the conditions which start the running of the statute of limitations. (25 Cyc., 1065; 19 Ency. Law, 193; McPherson v. Swift, (S. D.) 116 N.W. 76; In re Hanlin's Est., 113 N.W. 411; French v. Higgins, (N. J.) 50 A. 344.) Until there is a record, complete in all essential respects of the proceedings of the trial court, there can be no review of such proceedings in the appellate court.

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

OPINION

POTTER, JUSTICE.

These two cases were brought and tried in the District Court of Albany County and are here on error. They have been heard in this court upon motions filed in each case to strike the bill of exceptions and dismiss the proceeding in error. The same questions are presented in each case. The pertinent facts are as follows: In one case (No. 698) judgment was rendered November 25, 1908, upon the verdict of a jury against the defendant below, the plaintiff in error here, for $ 3,207 and costs. A motion for new trial was filed November 30, 1908, and on October 9, 1909, an order was entered granting said motion unless the plaintiff should within fifteen days file a remittitur in the sum of $ 2,407, thereby reducing the judgment to $ 800; and denying the motion if said remittitur be filed. The remittitur was filed within the time specified, and on November 6, 1909, a new or modified judgment was entered for the reduced amount. The petition in error was filed in this court on October 13, 1911.

In the other case (No. 699) judgment was entered on November 27, 1908, against said defendant, the plaintiff in error here, also upon the verdict of a jury, for $ 1,092.50 and costs. A motion for new trial was filed on December 4, 1908, and on October 9, 1909, an order was entered granting said motion unless the plaintiff should file within fifteen days a remittitur in the sum of $ 942.50, thereby reducing the judgment to $ 150; and denying the motion if such remittitur be filed. The remittitur was filed within the period specified, and on November 6, 1909, a new or modified judgment was entered for the reduced amount. The petition in error was filed in this court on October 16, 1911.

In each case, at the time the motion for new trial was disposed of as aforesaid, the defendant excepted to that part of the order which permitted the judgment to stand provisionally for the amount to which it would be reduced by the remittitur, and was granted time up to and including the first day of the March, 1910, term of said court to reduce its exceptions to writing and present the same for allowance. On the first day of said March term, viz.: March 14, 1910, a bill of exceptions was presented, which appears to have included only a portion of the evidence. On the following day the plaintiff filed a motion to strike the bill so presented on the ground among others, that it did not contain all the evidence. The matter of allowing and signing the bill came on for hearing before the trial court on September 19, 1911, at which time the bill was allowed and signed. The court, however, inserted in the bill a statement of facts showing the condition of the bill when presented; that it was subsequently completed by incorporating therein the remainder of the evidence without express permission of the court; that the transcript of the evidence was not ordered until about ten days before the expiration of the time allowed for the presentation of the bill; that it was impossible for the official stenographer to complete the transcript between the time when it was ordered and the first day of the March, 1910, term; that if the transcript had been ordered within a reasonable time, the stenographer would have had...