Tracy's Adm'x v. Carver Coal Co

• Court: West Virginia Supreme Court
• Writing for the Court: SANDERS
• Citation: Tracy's Adm'x v. Carver Coal Co, 57 W.Va. 587, 50 S.E. 825 (W. Va. 1905)
• Decision Date: 25 April 1905
• Parties: TRACY'S ADM'X. v. CARVER COAL CO.

57 W.Va. 587

50 S.E. 825

TRACY'S ADM'X.

v.CARVER COAL CO.

Supreme Court of Appeals of West Virginia.

April 25, 1905.

APPEAL—SKELETON BILL OF EXCEPTIONS—EVIDENCE—RECORD.

1. While what is familiarly known as a "skeleton bill of exceptions" (that is, a bill which provides for the subsequent copying by the clerk into it, and as a part of it, of some paper or document), is allowed, yet, to make such a bill valid and complete, these rules must be regarded: (1) The bill, in referring to such paper or document, must purport to incorporate it into and make it a part of the bill; a mere reference to it, although such as to identify it beyond doubt, or a statement that it was in evidence, is not sufficient. (2) The document must itself, at the time of the signature of the bill, be in existence, written out, and complete. (3) It must be annexed to the bill, and referred to as annexed, or it must be so marked, by letter, number, or other means of identification, as to leave no doubt, when found in the record, that it is the one referred to in the bill; and thes» means of identification must be obvious to all, so that any one examining the record can know what document or paper is to be inserted, or, after its insertion, that the clerk has made no mistake.

[Ed. Note.—For cases in point, see vol. 21, Cent. Dig. Exceptions, Bill of, § 30.]

2. A skeleton bill of exceptions may be adopted for the purpose of making evidence taken down and transcribed by a shorthand reporter a part of the record, but at the time the bill is signed the evidence must be actually transcribed, and, unless it is attached to the bill, it must bear some mark of identification, such as is re quired in making any other paper or document a part of such bill.

[Ed. Note.—For cases in point, see vol. 21, Cent. Dig. Exceptions, Bill of, § 30.]

3. Evidence taken down and transcribed by a shorthand reporter is not a part of the record, and can only be made so by a proper bill or exceptions.

[Ed. Note.—For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 2370.]

4. Where a skeleton bill of exceptions is taken for the purpose of making evidence a part of the record, and where such evidence has not been actually transcribed, or, if transcribed, is not referred to in such way as to make it a part of the bill, it cannot, after the expiration of 30 days since the adjournment of the term at which final judgment was rendered, be certified and identified so as to become a part of the bill.

(Syllabus by the Court.)

Error to Circuit Court, Putnam County.

Action by Daniel Tracy's administratrix against the Carver Coal Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Price, Smith & Spilman and J. H. Nash, for plaintiff in error.

W. L. Higgins, Gunn & Alexander, and Chas. E. Hogg, for defendant in error.

SANDERS, J. The demurrer to the declaration, which was overruled by the circuit court, not being insisted upon here, and the declaration appearing to be good, the first question presented is whether or not the evidence taken upon the trial is a part of the record. This action was tried in the circuit court of Putnam county, and at the September term, 1902, judgment was rendered in favor of the plaintiff for $1,800, and the court gave the defendant time within which to prepare and present for signing proper bills of exceptions; and in vacation, on the 22d day of October, 1902, an order was entered by the judge showing the signing of bill of exceptions No. 1, and certifying the same to the clerk of the court, with directions to the clerk to enter an order making it a part of the record. The bill of exceptions signed is what is known as a "skeleton bill"; that is, it contains only the formal parts thereof, with parenthetical instructions to the clerk, "Here insert the stenographer's transcript of the evidence for the plaintiff in chief, " and so on, with like instructions as to the defendant's evidence, the plaintiff's evidence in rebuttal, and the defendant's evidence in surrebuttal. The clerk, in making up the record, copied literally the bill of exceptions, and, instead of inserting the evidence at the places provided and called for in the bill, the parenthetical instructions were copied; and after the bill of exceptions had been copied, and just following it, what purports to be the evidence is given. The fact that the evidence was not copied in the places called for in the bill will not impair the bill if the court can see that it is the evidence that the judge therein called for and Instructed to be inserted, and, in determining this, we must look to the evidence for some mark of identification by which the clerk could be safely guided in preparing the record. If we find no such mark or memorandum thereon as brings it within the parenthetical description in the bill, then it must not be treated as a part of the record. "When the paper which is to constitute a part of a bill of exceptions is not incorporated into the body of the bill, it must be annexed to it, or so marked by letter, number, or other means of identification mentioned in the bill as to leave no doubt, when found in the record, that it is the one referred to in the bill of exceptions; otherwise it will be disregarded." McKendree v. Shelton, 51 W. Va. 516, 41 S. E. 900. And in that case it is held that a copy of a paper attached to a pleading in the case, which purports to be the same as the paper mentioned in the bill of exceptions, does not make it a part of the bill, nor can it be presumed that it is the same paper read in evidence and excepted to. The document or paper called for, and directed to be inserted in the bill, must be so clearly referred to and marked on the record as to be identified beyond reasonable doubt, and the means of identification must be obvious to all. No mere memorandum, however intelligible it may be to a single person— even the clerk—but indicating nothing to any one else, will be sufficient. They must be so that any one going to the record can determine what document is to be inserted, or, if inserted, that the clerk has made no mistake. Bills of exceptions commonly called "skeleton bills" are well recognized by the law; that is, where the court or judge prepares or signs the bill, containing only the formal parts, and provides, by parenthetical instructions to the clerk, to copy into the bill certain documents or evidence. This class of bills of exceptions is of great use, and labor saving to the profession and the courts, and, since our statute has provided for stenographers to take down the evidence upon the trial in shorthand, and to furnish a transcription thereof, the evidence thus taken by the stenographer can be made a part of the record by such skeleton bill of exceptions; but in doing so, as in all other cases, the evidence must have been actually before the judge, because, under our statute, the judge of the trial court is required to certify the evidence by proper bills of exceptions. Code 1899, c. 131, § 9. And while sections 3, 4, p. 1135, Appendix Code, provide that the shorthand reporter shall take full shorthand notes of the testimony in any case in which his services may be required, and that such notes shall be deemed and held to be official, and the best authority in any matter of dispute, they do not make such notes a part of the record; but, in order to become so, they must be transcribed by the stenographer, and made so by the court or judge, by a proper bill of exceptions. It is provid ed by these sections that the "notes shall be deemed and held to be official, and the best authority in any matter of dispute." But where the party desires to use the evidence taken upon the trial, it is further provided that "a copy of the same, made as hereinafter provided, shall be used by the parties to the cause in any further proceedings, wherein the use of the same may be required." 'Where official court stenographers are appointed by law to take down the proceedings on the trial, the bill of exceptions is still indispensable to bring their reports up, although the statute expressly declares that they shall be 'the best authority in any matter of dispute.' * * * The certificate of the stenographer to the accuracy of the longhand manuscript is not enough. The trial judge must indicate his approval of its correctness by authentication under his own hand." 3 Ency. PI. & Pr. pp. 436-7. This certificate is required of the judge under our statute. But where the skeleton bill is prepared, and there are specific instructions to the clerk to incorporate therein the evidence taken and transcribed by the stenographer, this is the certificate of the court or judge to the evidence taken upon the trial, provided the evidence has been actually transcribed and certified by the stenographer, and is so identified with the case that the instructions given by the bill of exceptions to the clerk can be followed with safety, and come within the rules hereinbefore referred to. A shorthand reporter acts under oath, and, while the shorthand notes shall be held to be official, yet he is required to furnish copies thereof when requested, and, in doing so, he should make the return under his certificate. Gunn v. Ohio River R. Co., 37 W. Va. 421, 16 S. E. 628; McKendree v. Shelton, supra; Leftwitch v. Lecanu, 4 Wall. 187, 18 L. Ed. 388; Atchison & Neb. Ry. Co....