Smith v. Blackmore

SLOAN, J. The record in this case is defective. No bill of exceptions, statement of facts, or motion for new trial appears therein. There was signed by the attorneys of record, and filed among the papers copied into the transcript, a paper purporting to be an agreed statement of the case and facts proven at the trial, permitted under paragraph 874 of the Revised Statutes. This paper was probably meant to take the place of both a bill of exceptions and a statement of facts. It embodied some of the characteristics of a bill of exceptions; and, under the authority of Putnam v. Putnam, ante, p. 182, 24 Pac. Rep. 320, had it been presented to the trial judge and by him settled and signed, as required by the statutes, as well as filed within the time allowed, it could have been considered as such. It fell short of a proper bill of exceptions in each of these particulars. Nor can it be considered as a proper agreed statement of the case permitted under said paragraph 874, inasmuch as it was not allowed nor signed by the trial judge, as provided therein. No agreement of counsel can take away the right, nor make it any less the duty, of the judge, under the statute, to approve and sign the statement before it becomes a part of the record. It is entitled to become a part of the record only by virtue of the allowance and signature of the judge, and, if these are wanting in any agreed statement attempted to be made and filed under said paragraph, it must be rejected as improperly in the record. [350] There is nothing, therefore, in the record to review except the jndgment-roll, and, as no error appears therein, the judgment must he affirmed; and it is so ordered. Gooding, C. J., and Kibbey, J., concur.