Riverton State Bank v. Richards

*7 Blume, Justice. This is an action brought by Emma A. Richards, plaintiff, against the Riverton State Bank, a banking corporation. Judgment was rendered for plaintiff for the sum of $744.67, from which judgment said bank has prosecuted proceedings in error herein. The petition in error herein assigns as error that the trial court erred in overruling the motion of the bank for a new trial. The second, third, fourth and fifth errors assigned relate to the admission or exclusion of certain testimony. The last assignment of error is as follows: “And there are other errors prejudicial to this plaintiff in error, manifest upon the face of the record.” The last assignment of error is, of course, altogether too general to present any questions for review in this court. Nelson v. Cons. Elevator & M. Co., 32 Wyo. 181, 231 Pac. 397; C. B. & Q. Ry. Co. v. Morris, 16 Wyo. 308, 93 Pac. 664; Holdsworth v. Blyth & Fargo Co., 23 Wyo. 52, 146 Pac. 603; 3 C. J. 1359, note 52. Errors predicated upon admission or exclusion of evidence must be presented to the lower court by a motion for a new trial, in order to be available in a proceeding in error. Schmidt v. First Na *8 tional Bank, 29 Wyo. 260, 212 Pac. 651. And in order that we may consider an assignment of error based thereon, or that we may review the action of the trial court in overruling the motion for a new trial, it is necessary, in a proceeding in error, that the motion for a new trial be embodied in the bill of exceptions. Such motion does not become a part of the record unless so embodied. This has been the law of this state at least since 1877, and has been consistently followed by this court ever since that time. Board of County Commissioners v. Hinton, 1 Wyo. 358; Schmidt v. First National Bank, supra; Chatterton v. Bonelli, 27 Wyo. 301, 315. But there is no motion for a new trial in the bill of exceptions herein. It is true that the court, in the final certificate to the bill, states: “The defendant duly filed its motion for a new trial, which is part of the record herein, for the reasons and upon the grounds therein stated, and the court * * * overruled the same, to which the defendant excepted. ’ ’ But this statement did not make the motion for a new trial a part of the bill. Concerning a similar statement in the bill, this court said in the ease of Chatterton v. Bonelli, supra: “This sufficiently shows the overruling of the motion and the exception to that ruling. But the motion is not embraced in the bill and it is not a part of the record unless incorporated in the bill. Seibel v. Bath, supra (5 Wyo. 409, 40 Pac. 756). That the reference to it as above is insufficient as a compliance with the rule and the decisions that the motion shall be embraced in the bill, is well settled and was explicitly so held in Seng v. State, supra (20 Wyo. 222, 122 Pac. 631).” In the case last referred to, the court said: *9 “The bill does not contain a motion for a new trial. It recites that ‘defendant filed a motion for a new trial, which was by the court overruled, to which the defendant at the time excepted.’ That is the only statement in the bill with reference to a motion for a new trial. The motion for a new trial not being contained in the bill of exceptions, never became a part of the record, and no exceptions required to be presented to the court below by such motion are properly here for consideration. ’ ’ The statement contained in the certificate of the judge, to the effect that the motion for a new trial “is part of the record herein, ’ ’ could not, of course, make that a fact. There is, accordingly, nothing before us to be considered, and the effect is the same as though no proceedings in error whatever had been taken. It may be unfortunate that the record before us is in that condition, but unless we are to overrule the law as it has stood in this state since at least 1877, there is nothing for us to do except to affirm the judgment herein. We might say, in explanation, that counsel appearing upon the brief filed herein for plaintiff in error, did not appear as counsel in the court below and did not file the petition in error in this case. The judgment of the trial court must accordingly be affirmed and it is so ordered. Affirmed. Potter, C. J., and Kimball, J., concur.