Fletcher v. Collier

Bleckley, Justice. 1. “Such transcript, together with the original bill of exceptions, the clerk shall transmit, together with a certificate that the same is the true original bill of exceptions, and a true and complete transcript of the record,” etc. Code, §4262. This direction is very plain, and the clerk ought to have complied with it as it stands. There can be no doubt that it is always better to certify in the exact language of the statute. But there is really no substantial difference between the original bill of exceptions, and the true original bill of exceptions. They are in fact one and the same. The clerk’s certificate assures us that we have the original. Is is possible for ns to believe it to be the original, and yet hesitate about its being the true original 1 What other original can there be but the true, one 2 [659] 2. The next question, on the motion to dismiss the writ of error, has two branches; first, does the clerk’s entry of filing, now found on the motion for a new trial, apply to the brief of evidence, as well as to the motion for a new trial? and, secondly, is there, in the bill of exceptions, a sufficient reference to the brief evidence, to dispense with embodying the brief in the bill of exceptions, and to qualify it for coming up to this court as a part of the record, under section 4253 of the Code ? As to the clerk’s entry of filing, though it is upon the motion for a new trial, there is evidence that the motion and the brief were connected together when the motion was prepared and presented in the court below; for the bill of exceptions sets out a copy of the motion, and one of the grounds of the motion refers to the evidence, and concludes with this language: “a copy of which, both oral and written, is hereto attached, and which movant prays may be taken as a part of his motion.” Now, if the brief of evidence was attached to the motion for a new trial, as this recital affirms, the whole constituted one single document, and the clerk’s entry of filing, placed upon the back of it, applied equally to the whole. The entry happened to rest directly upon that part of the package which embodied the motion for a new trial, but the rest of the package, embracing the brief of evidence, was no less within its scope and purpose. When one instrument of writing- is attached to another at the time of the filing, the clerk’s entry of filing, unless expressly restricted by its own terms to one, ought to be considered as extending to and comprehending both. It will be observed that the evidence on which we are relying to establish the fact that the two papers were connected together, is a recital found in the motion for a new trial, which recital appears in the motion as contained in the transcript of the record, and also as copied at large in the bill of exceptions. But how, it will be inquired, do we know the recital is true ? By the express approval of- the judge. On the brief of evidence, the judge, over his own signature, has approved both the brief itself, [660] and the grounds of the motion for a new trial, one of which grounds contains the recital which we are considering. When we put the clerk’s entry, the recital and the judge’s approval together, we can have no reasonable doubt that the brief of evidence, as well as the motion for a new trial, was duly filed, and that the entry of the clerk was intended to apply to the one no less than to the other. There is no question that the judge’s approval of the brief of evidence was sufficient to satisfy section 4253 of the Code ; and the evidence of filing being, as we have just seen, also sufficient, we are next to determine whether the bill of exceptions refers to the brief so as to satisfy the same section of the Code in that respect. The section does not require the reference to be made in any particular terms, but only that it be made. As already stated, the bill of exceptions contains a full copy of the motion for a new trial, and one of the grounds of that motion distinctly refers to the evidence, and recites that a copy of it is attached, leave being asked to treat such copy as a part of the motion. The copy of the evidence here mentioned is, as we have already seen, the brief which the judge approved, and which was filed together with the motion. The motion being set out in the bill of exceptions, the words of the motion become a part of the bill of exceptions, and it is thus that we are enabled to hold that the bill of exceptions refers to the brief of the evidence. The motion to dismiss the writ of error is denied. 3. Though Mrs. Johnston was a party to the contract or cause of action on trial, she was a competent witness to prove any fact which did not come to her knowledge by reason of that relationship, nor involve any direct reference to it. She was certainly competent to testify when her father died, since the time of liis death was not known to her by reason of her being a party to the contract or cause of action, nor did it bear directly on the making or the breach of any contract, or on the creation of any cause of action. It was a fact which might have been known to any stranger as well as to her. [661] 4. As Mrs. Johnston was competent to prove at least one fact answered to in her depositions, a sweeping objection to all her answers, upon the ground that she was incompetent as a witness because her father was dead, could not be sustained. This or that testimony should have been objected to specifically ; and if that course had been taken, we may presume that the court would have ruled out such of it as she was incompetent to give. The objection which was made did not require the court below,‘nor does it require this court, to apply any principle of selection. It is enough that the depositions contained some admissible evidence— some evidence which the witness was competent to give on the trial. o. The act of the general assembly under which the contract of insurance was made, was read to us by counsel in the argument. From the act, an'd the evidence adduced at the trial, we are satisfied that the proceeds of the contract were payable to the widow of the insured for her use and the use of their dependent children ; and that when paid, the money vested in her, partly as her own, and partly in trust for such children. Taking into view the object and purpose of the Masonic system of insurance, we think the respective shares of the widow and children might be either equal or unequal, according to circumstances. Equality would not necessarily be the rule of division or appropria tion. Among the children themselves, there might be inequality, resting on their comparative ages, health, strength, etc. So, between the widow and any given child, inequality might rest on the like circumstances, and perhaps others. 6. Having ruled that the title to the whole fund is in the widow, some of it in trust for the dependent children, the balance in her own right, it follows that she was the proper person to sue for it and collect it, if her father died chargeable with it, or with any part of it. Her father took it, at her requést, to manage it; and was consequently her agent, not the agent of the children. He was accountable to her alone, unless in combination with her he commit [662] ted some wrong prejudicial to tbe children’s rights. Surely it was not wrong to accept the agency. She had a right to manage the fund either in person or through an agent. How can there be a recovery unless she is made a party to the bill % Our line of thought on this point is sufficiently sketched in the sixth head-note. As she was not a party to the cause on trial, the verdict of the jury was contrary to law. Judgment reversed.