Oliver-McDonald Co. v. Swift & Co.

Beck, P. J. The case presented to the appellate court by the cross-bill of exceptions is essentially a part of the main case; that is, the case made by the assignments of error in the main bill of exceptions.. It may stand on the docket as a separate aird distinct case; and from certain other viewpoints it might be regarded as a separate and distinct case; but it is essentially a part of the main case. In this court and in the Court of Appeals questions made in the cross-bill of exceptions are invariably argued along with those made in the main bill. The cross-bill of exceptions might be considered as a branch of the main bill. For failure to comply with certain provisions of the law the branch might be lopped off; that is, the cross-bill of exceptions might be dismissed and leave the main bill still in court. We will not undertake to cite the decisions throwing light upon this question from any standpoint. If the main bill of exceptions raised questions which gave this court jurisdiction, it seems quite clear that the cross-bill of exceptions should accompany the main bill to this court; that is, they should go together. And we are of the opinion that if the cross-bill of exceptions raises questions that can only be determined in this court, the main bill of exceptions should be here with it. If the main bill of exceptions remains in the Court of Appeals, and the cross-bill be transmitted to this court because it contains assignments of error based upon constitutional questions, this court in determining the constitutional questions raised might hold that the entire case was decided by the decision upon the constitutional question; and if the main bill of exceptions were left in the Court of Appeals, the decision might in some cases be rendered there which would not be in harmony with the decision in this court. Section 6148 of the Civil Code, relating to cross-bills of exceptions, reads as follows : “If a defendant in error excepts in any case by bill of exceptions, he shall prepare his bill of exceptions and proceed in the same manner as above provided, but shall not take up any portion of the evidence or record that is taken up by the main bill of exceptions.” It will be seen from the provisions of the section just quoted that the defendant in error does not take up [105] any portion of the evidence or record that is taken np by the main bill of exceptions. It necessarily follows from the provisions of that section that if the cross-bill of exceptions should be sent to this court, unaccompanied by the main bill of exceptions, there might be in this court questions raised in the cross-bill which could not be determined without reference to the evidence or record brought up by the main bill of exceptions. As a rule, the cross-bill of exceptions could not make a complete case here if unaccompanied by the main bill of exceptions, which has the office of bringing up the record and evidence necessary to the determination of the assignments of error alleged to have been committed. We do not think that the fact that if the judgment of the court below is affirmed on the main bill of exceptions the cross-bill will be dismissed in the Court of Appeals, can be permitted to overcome other considerations in favor of the holding that, if the cross-bill is transmitted to this court because of the character of the assignments of error in the cross-bill, the main bill should also be transmitted to this court. All the Justices concur.