U.S. Fidelity & Guaranty Co. v. Travelers' Ins. Mach. Co.

• Decision Date: 17 December 1915
• Parties: UNITED STATES FIDELITY & GUARANTY CO. ET AL. v. TRAVELERS' INS. MACH. CO.
• Court: Kentucky Court of Appeals

180 S.W. 815

167 Ky. 382

UNITED STATES FIDELITY & GUARANTY CO. ET AL. v. TRAVELERS' INS. MACH. CO.

Court of Appeals of Kentucky.

December 17, 1915

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Fourth Division.

Action by the Travelers' Insurance Machine Company against the United States Fidelity & Guaranty Company and another. From a judgment for plaintiff, defendants appeal. Affirmed.

J. P Hobson & Son, of Frankfort, and Wm. Marshall Bullitt and Alex. Scott Bullitt, both of Louisville, for appellants.

David R. Castleman, Merit O'Neal, Wm. B. Thomas, and Pryor &amp Castleman, all of Louisville, for appellee.

SETTLE J.

This appeal brings to us for review a judgment of the circuit court, entered upon a verdict awarding the appellee, the Travelers' Insurance Machine Company, $91,585.20 damages against the appellants, Noyes Manufacturing Company and the United States Fidelity & Guaranty Company, for the alleged violation by them of a contract, the former as principal and the latter as its surety, made with appellee August 3, 1911.

The motion of appellee, made in this court, to strike the bill of exceptions from the record, will first be disposed of. The grounds urged in support of the motion are: (1) That the truth of the bill is not properly "attested by the affidavits of two bystanders," because of the failure of the bystanders to read the bill before signing the affidavits. (2) That the bill is otherwise insufficient, because it does not contain a transcript of the evidence from the stenographic notes taken thereof on the trial by the official stenographer of the court.

It is conceded by the appellee that a bystanders' bill of exceptions was necessary in this case, owing to the death of the judge, W. M. Smith, who presided at the trial, and such bill is expressly allowed by section 337, subsection 5, Civil Code, which provides:

"If the judge who presided at the trial do not preside when a motion for a new trial is (or has been) overruled the bill of exceptions may be certified by bystanders, and be controverted and maintained, pursuant to the provisions of subsections 3 and 4 of this section."

Subsection 3 provides:

"If the bill of exceptions be approved by the judge he shall sign it, and it shall be filed as part of the record, but not spread at large on the order book. If not approved, he shall correct it, or suggest the correction to be made, and sign it. A party objecting to the judge's correction of an exception which purports to state the evidence may, within five days after the bill is signed, file the exception as written by him, if its truth be attested by the affidavits of two bystanders; but its truth may be controverted and maintained by other affidavits filed in the clerk's office, not exceeding five on either side."

By subsection 4 it is provided:

"Affidavits controverting an exception not signed by the judge must be filed in the clerk's office, and notice of the filing given, within fifteen days after the filing of such exceptions; and affidavits sustaining such exception must be filed within fifteen days after such notice."

It appears from the record that the trial of this case in the court below began May 11 and ended May 21, 1914, and that a motion for a new trial was made by each of the defendants within three days after the conclusion of the trial. The motions for new trial were overruled August 7, 1914, and 60 days' time for filing a bill of exceptions was given, by an order then entered, which carried the time for filing the bill to October 6, 1914. Judge Smith, who had presided at the trial and overruled the motions for a new trial, died September 3, 1914, and on September 21, 1914, Judge Charles T. Ray qualified as his successor. On October 1, 1914, 5 days before the expiration of the 60 days' time allowed by the order of August 7th for filing the bill of exceptions, an order was entered by Judge Ray granting the appellants 60 days' additional time within which to prepare and tender their bill of exceptions, which extended the time for filing the bill to December 3, 1914. It is conceded by appellee that this extension of time for filing the bill of exceptions was permissible under the practice obtaining in courts of continuous session, like that of the Jefferson circuit court.

On October 5, 1914, which was the day before the expiration of the 60 days first allowed for filing the bill of exceptions, the appellants tendered and moved to file the bystanders' bill of exceptions appearing in the record, "certified to by bystanders and the truth thereof attested by the affidavit of such bystanders." The court thereupon ordered it marked "tendered" and took under submission the question whether it should be filed. Instead of being certified and attested by the affidavits of two bystanders, as required by section 337, subsection 3, Civil Code, this bill was certified and its truth attested by the affidavits of five bystanders, viz.: John W. Ware, official stenographer of the court; N. B. Wigginton, foreman of the jury by which the verdict was returned; Morse English, clerk of the court; T. C. Duddy, a deputy sheriff acting for the court during the trial; and C. C. Smith, a law clerk in the office of appellants' counsel. The bystanders' bill of exceptions so tendered on October 5th purported to contain within itself, and not by any reference or direction to "insert," all the evidence, exhibits, instructions, and exceptions, and declares that it "contains all the evidence which was heard, read, or considered on the trial of this case, and all the exceptions taken by each of the defendants on the trial of the case, and all of the instructions asked, given, or refused, which bill of exceptions is true"; and, after stating the death of Judge Smith and the necessity for preparing the bill in the form presented, ended with the declaration that the appellants "have had this bill of exceptions certified by and the truth attested by the affidavits of five bystanders, to wit (naming them)." As thus prepared, the bill was signed by the five bystanders, who made oath that they "do certify to and attest the truth of the foregoing exceptions and do depose and say that the foregoing bill of exceptions is true, and that the statements therein contained are true."

October 9, 1914, appellee moved to strike the tendered bill from the record, and in support of the motion filed affidavits from four of the bystanders who had sworn to the bill. These affidavits failed to dispute the correctness of the bill in any particular, but did state that the affiants had signed and sworn to it without reading it in full. In the meantime, and before ordering the bill to be filed, Judge Ray discovered that his predecessor, Judge Smith, had failed to sign the judgment entered on the verdict or the order overruling the motion for a new trial; also, that he had not signed any of his orders and judgments for as much as a year before his death. After communicating this information to the counsel representing the parties to this action, Judge Ray, on October 16th, under the authority of section 977, Kentucky Statutes, signed and dated all of Judge Smith's unsigned orders, including the judgment and orders in this case; and, on the same day, overruled appellee's motion to strike appellants' bill of exceptions from the record, and ordered the tendered bill to be filed and made a part of the record, and it was so filed with the same effect as if it had been filed October 5, 1914, when first tendered. Because of the previous filing of the affidavits by appellee, for the purpose of showing that the bill of exceptions had not been read to or by the bystanders by whom it was certified and its truth attested, appellants, on October 28th (which was still within the extension of time given for filing their bill), filed the affidavits of D. L. Linville, C. C. Tharpe, C. W. Dale, B. H. Noyes, and Jno. W. Ware. Linville and Tharpe were members of the jury that tried the case, Dale and Noyes bystanders, and Ware the official stenographer. These affidavits show that the affiants named were present throughout the trial; that they had read the bill of exceptions; that the statements therein contained were true; and that they did "certify to and attest the truth of the said bill of exceptions which is a true bill of exceptions."

It is, however, insisted for appellee that Noyes was incompetent to attest the bill as a bystander because of his connection with the appellant Noyes Manufacturing Company, and interest in the subject-matter of the action; and that C. C. Smith, one of the original five persons who attested the bill, was incompetent because associated with appellants' counsel in the trial of the case. Conceding this to be true, though but two were required, there are still left four of the five bystanders who certified and attested the truth of the bill before it was tendered, and four of those making the affidavits last filed certifying and attesting the truth of the bill; the last four stating that they had read the bill of exceptions. So, if it were further conceded that inquiry can now be made as to whether the first bystanders read or had read to them the bill before certifying and attesting its truth, the fact that it was read by Linville, Tharpe, Dale, and Ware before being certified and its truth attested by them, and that their affidavits, showing that fact, were filed within the extension of time allowed by the court for preparing and filing the bill of exceptions, makes it apparent that the bill must be regarded as having been duly certified and its truth attested by bystanders in the meaning of the Code.

After the filing of the affidavits last mentioned, appellee filed an affidavit which...