Jett v. Sittle

Townsend,, C. J. On the 9th day of October, 1900, the appellee filed motion to dismiss the appeal upon two grounds, as follows: “First, the pleadings, orders, and judgments, which are purported to be copied in the transcript, are not properly authenticated; second, there is no bill of exceptions copied in the transcript. ’ ’ On the same day this court ordered the case submitted on said motion, and also upon the merits- From the transcript of the record it appears that there was an effort by counsel to agree, and we find the two following agreements as to what the transcript should contain: “South McAlester, I. T., Aug. 21st, 1900. We. J. E. Whitehead,- attorney for defendants, and S. A. Wilkinson, attorney for plaintiff, do hereby agree that the foregoing transcript contains all the record material to the issues in dispute in this case, and each agree for himself and client that the foregoing shall constitute the transcript in the case. J. E. Whitehead, Attorney for Defendants. ” “The attorneys for the appellee, Frank Sittle, agree that the foregoing is a correct copy of all pleadings and orders purported to be copied herein, and we also agree that appellant need not copy the pleadings and orders of court, which are omitted herefrom. This 21st day of August, 1900. Wilkinson & Kennedy.” We do not exactly understand why the appellee should move to dismiss because the ‘ ‘pleadings, orders, and judgments * * * are not property authenticated, ” when as above stated, he “agrees that the foregoing is a correct copy of all pleadings and orders purported to be copied [677] herein, and we also agree that appellant need not copy the pleadings and orders of court which are omitted herefrom. ” In their supplemental brief appellants insist that appellee agreed by the foregoing to the transcript as prepared. We are of the opinion that when appellee agreed “that the foregoing is a correct copy of all pleadings and orders purported to be copied herein,” he will not be permitted here to say that they are not “properly authenticated.” The second ground of motion to dismiss is for the reason that there is no bill of exceptions and this presents a more difficult question. In 3 Enc. PI. & Prac. p. 392, it is said: “Motions of various kinds, made during the progress of the cause, and the rulings of the court granting or denying them, must, in order to be reviewed upon appeal, be taken up on a bill of exceptions.” The same book (on page 400) says: “Motions to strike out pleadings, together with the rulings thereon, cannot be considered on appeal unless incorporated in a bill of exceptions.” See, also Thomp. Trials, §§ 2773, 2777, 2779. In Severs vs Trust Co. 1 Ind. Ter. Rep. 1, (35 S. W. 234,) Judge Lewis, for this court, says: “A judgment by the Arkansas Code is ‘a final determination of the rights of the parties in an action.’ The reasons announced by the court to sustain its decision constitute no part of the judgment, and do not become such by reason of the fact that the clerk may enter them upon the minutes. Such matters are properly presented for review by bill of exceptions only. Preem. Judgm. §§ 2, 79; 2 Thomp. Trials, §§ 2781, 2773, 2776; Elliott, App. Proc. 814, 815. In the case of Hall vs Bonville, 36 Ark. 495, the court said: ‘It is true that in the judgment entry there is a statement of the evidence introduced on the trial, or agreed on,' and of the declaration of the law of the case made by the court; but it is the province of the bill of exceptions and not of the judgment entry, to bring on the record facts proven or admitted on the trial, and the declarations of law [678] made by the court upon them. ’ This must be a correct Statement of the law; otherwise *a judgment might become the vehicle for presenting upon appeal any ruling of the trial court at any stage of the trial. ‘Nothing can be made a matter of record by calling it by that name, nor by inserting it among the proper matters o I! record.’ Freem. Judgm. § 78. ” In Steck vs Mahar, 26 Ark. 537, 538, the court says: ‘ ‘ Where the error complained of does not relate to errors growing out of the evidence or instructions, but is apparent from the record without the intervention of a bill of exceptions, there is no necessity for making a motion for a new trial, and the cause in such a case can be brought to this court without making the motion; but in cases where the error complained of does not appear of record, save by the intervention of a bill of exceptions, a motion for a new trial must be made before appeal will lie to this court; and the appeal will not lie in the case last supposed if the error complained of can be corrected in the manner provided in section 571 of the Civil Code, until the motion has been made in the circuit court, and there overruled. Section 886. In the case at bar it appears there was an issue and trial of fact by the court below; not only an issue and trial, but a finding that Mahar was and is the legal constable of Vaugine township, and that Steck is an usurper of said office, and not entitled to discharge the duties thereof, and of right has no claim thereto. A judgment of ouster followed this finding. There is no error in the judgment if the finding of the court, sitting as a jury, is correct. Whether the' court erred as to the finding of facts, we have no means of ascertaining, nor would it be proper for us to take the matter under consideration in the present attitude of the case. Counsel for the appellant urge that the bill of exceptions is defective in not showing the evidence, or in any manner identifying it. It is unnecessary to say anything about the exceptions, as the record itself cannot be considered by the court.” [679] The amended answer to the petition for supersedeas was stricken out by the court on motion, and plaintiff excepted. This could only be shown by bill of exceptions. The overruling the motion to quash the garnishment to which the defendant excepted, and the recitals in judgment for the plaintiff that the court ‘ ‘heard the admissions of the attorney for defendant Jett” as a reason for his judgment, could only be shown by bill of exceptions. Hence it is our opinion that, before we can consider the errors assigned by appellant, a bill of exceptions should be. filed in this court properly bringing the errors complained of to the attention of the court. The appellant, in his supplemental brief, says: “We think there is nothing in the motion, but, should the court think otherwise, we will only ask fair treatment in an opportunity to comply with what the court thinks necessary to the consideration of the appeal upon its merits. We feel that the merits should be considered. ” We will not dismiss the 'appeal, but will allow appellant, if he desires, to file a bill of exceptions bringing up all errors complained of, to the end that the case may be submitted on its merits upon the errors assigned. If he declines to do so by the next term of court the appeal shall stand dismissed. Gill and Raymond, JJ., concur.