Catlin Land & Canal Co. v. Burke

Per Curiam. This is an appeal from a decree adjudicating priorities to the use of water in water district ISTo. 17. It is at present before the court for consideration upon certain motions filed by appellants and a counter motion filed by appellee. Appellants ask to withdraw the bill of exceptions for the following purposes: First. To incorporate therein a certain map introduced at the trial. Second. To obtain a certificate of the trial judge to the effect that the bill contains all the evidence. Third. For the purpose of having the bill properly filed in the district court. By the counter motion of appellee, we are asked to strike the bill of exceptions from the files because the same was not filed in the district court; second, because it was not presented or signed by the district judge within the time allowed by the court for so doing. It is the practice of this court to allow bills of exception to be withdrawn for amendment in accordance with the facts, in case the application to amend is presented in apt. time, and the amendment asked for is reasonable and necessary to the full presentation of the cause. In order that a bill of exceptions may be of benefit to a party complaining that a decree is against the evidence, or of any assistance to this court, it must contain all the evidence introduced at the trial, except in certain proceedings, like the one at bar, where it [421] is only necessary that it shall contain all the evidence bearing upon the particular point sought to be reviewed. Sec. 2429, Mills’ Annotated Statutes. If the only omission in this case consisted of the map alluded to, and if it appeared that, with the insertion of such map, the judge could certify that the bill contained .all the evidence, we would be disposed to allow the amendments desired by appellants, but an examination of the bill shows that the same would not contain all the evidence if the map were included. The transcript shows that the map which appellants desire to incorporate in this record is only one of several exhibits that were introduced and relied upon at the trial that are omitted from the bill of exceptions, although necessary to a review of the cause in this court upon exceptions based upon the effect of evidence. The bill is also defective in other particulars. For instance, it entirely omits other material evidence received by the court below bearing upon the issues sought to be reviewed in this court. It is apparent, therefore, that appellants would not be benefited by the granting of their motion to insert the map, for with it the trial judge will not be able to certify that the bill contained all the evidence. In fact, the transcript of the evidence on file is so incomplete that we are satisfied .that.it would be unwise to permit its withdrawal for the purposes of amendment. To do so would invite a contest before the judge presiding at the trial, which would result in putting the parties to increased expense, without any reasonable possibility of benefit to either. For these reasons, an order will be entered denying appellants’ motion for leave to withdraw the bill for amendment and filing, and the bill of exceptions will be stricken from the files.