Bank of Chadron v. Anderson

PotteR, Chief Justice. A motion is made to dismiss this cause on the ground that the motion for new trial, the order overruling the same, and the exceptions reserved thereto are not embraced in .the bill of exceptions, and that the record, therefore, presents no reviewable error. The motion and the entire cause were heard together. [446] In opposition to the motion to dismiss it is suggested that the motion for new trial was attached to the bill of exceptions at the time the same was presented, allowed, and signed, but by inadvertence it was not marked as an exhibit, and an affidavit of counsel for plaintiff in error to that effect is filed. The showing attempted to be made by the affidavit is that the bill with the motion attached is now in the same condition as when presented and allowed. It is further insisted that based upon the findings alone the judgment is erroneous, and should have been rendered in favor of plaintiff in error, and as this appears without reference to the bill, the motion should be denied. Between the covers of that which is indorsed as ‘ ‘ Bill of Exceptions,” the first four pages embrace what is entitled “Motion for Mew Trial.” The following page contains the title of the case, the heading, ‘ ‘ Bill of Exceptions, ’ ’ and the caption of the bill, showing clearly enough that it is the beginning of the bill. The caption does not refer to any motion for new trial, nor is such a motion elsewhere mentioned until we come to the certificate of the judge. That certificate states, by way of recital, that a motion for new trial was overruled, but does not identify any particular motion, nor does it appear by any statement in the certificate' or elsewhere in the bill, that an exception was reserved to the overruling of the motion. So that, even were we to consider that the motion is incorporated in the bill, we could not overlook the absence of an exception to the ruling of the court denying the same. Where the bill is unintelligible, confused,' or conflicting, it will be interpreted against the appellant, and in support of the judgment, as the exceptant is responsible for all deficiencies therein. 3 Ency. Pl. and Pr., 509, and cases cited. Counsel for plaintiff in error seems to regard the rule of this court requiring the motion, the overruling thereof, and exception thereto to appear in the bill as additional to any statutory regulation, whereas the rule merely emphasizes that which follows from the ' statute. The motion is not made a part of the record by [447] statute, although the pleadings are, hénce the necessity for preservation by bill of exceptions to give it a place in the record. We are unable to say, after a careful examination of the bill and the certificate of the judge, that it was intended to identify the motion itself as a part of the bill. It was said by this court in Van Horn v. State, 5 Wyo., 501, that “it would be a loose and dangerous practice to supply omissions in the bill by affidavits of the counsel or others, and the statute does not permit it.” As has been already indicated, the deficiency in the bill goes beyond the question whether the motion was and is in the bill. There is no showing either in the bill or in the record anywhere that an exception was reserved to the overruling of the motion, and notwithstanding that if error is disclosed by the record independent of the bill of exceptions, the proceedings should not be dismissed, this court can not review or consider any alleged errors which should have been presented to the trial court by motion for new trial. The exception to the ruling of the court denying the motion must appear in the bill, and we could not resort to any other record to supply it, and the reference above made to the failure of the entire record to show such an exception is mentioned merely by way of emphasis to show the more clearly, if possible, that however much we might be inclined to favor the bill by every reasonable intendment, that would not permit us to supply an omission of such an essential requirement as an exception to a ruling which is assigned as error. It is, however, seriously urged that upon the findings themselves the judgment can not be sustained, and should be reversed. That matter we will now consider. The action was brought by the Bank of Chadron against Anderson upon a judgment obtained in the county court of Dawes County, in the State of Nebraska. The defense interposed was, in substance and effect, that the judgment had been procured through fraud, and that the notes upon which the judgment was rendered were obtained from [448] Anderson through fraud, and were void in the hands of the original holders, and the bank as well, who held them as collateral security; that they had been adjudged void as to original holders by a decree of the district court of Nebraska sitting in Dawes County, and the bank enjoined from collecting them, except as to such interest as it had acquired therein prior to the commencement of the suit in which the decree was entered. It was also charged that the bank had not acquired any interest in the notes. The principal facts are stated at some length in the opinion in Bank of Chadron v. Anderson, 48 Pac., 197; 6 Wyo., 518; when the case was before this court upon error from an order vacating a former judgment. The facts are practically the same in the case at bar, and we shall not attempt a restatement of them. Summarized, the findings of the trial court are: First, that the county court of Dawes County, Nebraska, had jurisdiction over the person of the defendant, and of the subject matter of the controversy. Second, that the judgment sued on was rendered for $161 in excess of the amount of the notes and interest, and that such excess was fraudulently caused to be added to the judgment by plaintiff’s counsel in that action; and generally that the judgment was procured by fraud on the part of the plaintiff and its counsel. Third, that the notes were not purchased by plaintiff in good faith, or for a valuable consideration, and without notice of the defense of Anderson thereto. Fourth, that the notes were not indorsed by the payees until after plaintiff had been fully advised by Anderson that they had been procured by fraud and were fraudulent, and that he had a valid defense thereto, and, Fifth, that plaintiff had not at any time any legal or valid interest in or title to the notes as against the maker thereof, and was not and is not entitled to recover any amount whatever from the defendant Anderson upon the notes, or the judgment of the county court, nor under the terms of the decree rendered by the district court of said Dawes County, Nebraska. [449] - The point insisted on is that, as the court found 'the county court to have possessed jurisdiction over the person of defendant and the subject matter of the action, none of the other facts found are sufficient to impeach the judgment rendered by that court and sued upon in the present action. We held when the case was here before, that the judgment could be impeached for fraud in its procurement. That question was fully discussed in the ■opinion then filed, and we adhere to the views therein expressed. The trial court found that the judgment was procured by fraud; and having so concluded, found from •the evidence that the notes themselves were fraudulently obtained, and that the plaintiff was.not an innocent holder thereof for value without notice.. If the judgment was fraudulently obtained, then every defense which the maker of the notes had as against the bank might properly be shown upon the trial. We can not consider whether the finding of the court respecting the fraudulent procurement of the judgment is sustained by the evidence or not, for the reason that, if not, it was a ground for a motion for new trial, and what the motion was, and whether the ruling denying the same was excepted to, does not appear. We are, therefore, unable to assent to the proposition that the judgment is improper as based upon the findings. If the findings are correct, and for the reasons already stated, we must assume them to be so, the appropriate judgment was rendered. What has been said necessarily disposes of the case. Although the correctness of the findings are not sufficiently challenged in this court to authorize their review, we are satisfied from an examination of the evidence that no injustice has been done. The judgment must be affirmed. Affirmed. Coen and Knight, JJ., concur.