Le Clair v. Hawley

PottER, Chief Justice. The plaintiff in error, who was plaintiff below, complaining on error of the judgment rendered in favor of the defendants upon a trial of this action in the District Court, has caused to be filed here his bill of exceptions, showing-on its face that it was reduced to writing and presented to the trial judge for allowance within the authorized time granted for that purpose by the court, and that it was duly and regularly settled and signed, and ordered to be filed as a part of the record in the cause. The defendants in error have filed a motion that the Clerk of the District Court be required to transmit with proper certificate a bill of exceptions alleged to have been taken and filed by them upon the overruling of their motion in said court to strike the plaintiff’s said bill from the files. A hearing has been had upon that motion. It is in substance stated in the motion that the bill thus sought to be brought into the record will show that the defendants objected to the settlement and allowance of plantiff’s bill on the ground that it had not been presented within the time granted by the court; that they subsequently moved to strike the bill from the files, and upon the hearing thereof [225] it appeared that such bill had not been presented to the court or judge within the time allowed, except by a filing thereof in the office of the clerk on the last day allowed for such presentation, viz: April 15, 1908, and that, without a previous presentation, except as aforesaid, on June 10, 1908, one of the days of the June term of the court, the bill was allowed and settled, and ordered to be filed as of April 15, .1908. Plaintiff’s bill, against which the alleged motion of defendants to strike was directed, certifies specifically that it was presented, allowed and signed on April 15, 1908. As before stated, therefore, the bill appears on its face to have been timely and regularly presented, settled and filed. By the motion now under consideration the court is asked to order another bill brought into the record for no other purpose, it seems, than to review a subsequent order of the trial court refusing to strike plaintiff’s bill from the files, and thus determine whether it truly states the facts as to the time when it was presented, signed and filed; and this is proposed not upon an appeal from the order which defendants complain of, but on the plaintiff’s appeal from the preceding judgment. It is clear that the purpose of the defendants is to challenge the regularity of the bill on file, since there is no other conceivable object of their motion. Indeed, they have filed a motion in this court, which, however, has not been submitted, to strike the bill from our fiiles on the same ground that their motion to strike is alleged to have been made in the lower court. Whatever the remedy of the defendants in error to further test the regularity of the bill which they object to, the motion now made is not the proper one. This court cannot solely upon plaintiff’s appeal from the judgment in the cause question or investigate the truth of the recitals of their bill of exceptions, which show it to be in all respects regular. (3 Ency. Pl. & Pr. 498; Baxter v. Coughlin, 80 Minn. 322; Bergenthal v. Fiebrantz, 48 Wis. 435; Nilson v. Morse, 52 Wis. 240; Magill v. Brown, 98 Ill. 235; [226] Myers v. Phillips, 68 Ill. 269; Underwood v. Hossack, 40 Ill. 98; Hyde Park v. Dunham, 85 Ill. 569; Riverside Rubber Co. v. Buckland, 18 O. C. C. 585; Iowa Gold Min. Co. v. Diefenthaler, (Colo.) 76 Pac. 981.) A bill of exceptions, like any other record, appearing to be regular on its face, imports absolute verity, and is not impeachable in the appellate court by any evidence outside the record itself. (3 Ency. Pl. & Pr. 513.) When it appears to be contradicted by another necessary or proper record in the appellate proceeding the question is then to be determined upon the record more properly reciting the particular matter. (Id. 514, 515.) The additional proceedings now asked to be brought into the record are not necessary to the maintenance or consideration of the proceeding in error instituted by the plaintiff, nor would they constitute properly a part of the record in such proceeding, unless presenting a matter within the cognizance of the court therein. This court has no control over the records of any inferior court except in the exercise of its appellate or supervisory jurisdiction. It cannot settle a bill of exceptions taken upon a trial or proceeding in a district court, nor amend or correct one allowed in such court. (Callahan v. Houck, 14 Wyo. 201.) In the absence, therefore, of a proceeding properly invoking its jurisdiction this court cannot inquire into the correctness of statements contained in a bill of exceptions appearing regular on its face. The bill alleged to have been taken by the defendants could not be used for the purpose of questioning the correctness of the present bill upon its mere filing as-a part of the record on plaintiff’s appeal, for until reversed or vacated we would be bound by the decision of the District Court upon the motion to strike filed by the defendants in that court. Otherwise a consideration of the matter would be independent and original in this court, and the bill of defendants could have no greater effect than affidavits or other extrinsic evidence which, it is well settled, are inadmissible in an appellate court to ques [227] tion the truth of a bill of exceptions appearing to have been regularly settled and made a part of the record. The cases of Tomlinson v. Harris and Harris v. Tomlinson, 130 Ind. 339, 426, cited by counsel for defendants in error, do not support the right to bring the additional record into this proceeding in the manner proposed. In those cases it was merely held that where, pending an appeal from the judgment in a cause, a motion of the appellant is granted in the lower court to amend the bill of exceptions, the appellee cannot appeal from the order amending the bill as from an original case, but the proceeding amending the bill, if it is to be questioned by the appellee, should be brought up on app'eahas a part of the main action; though it was held that where a suit is instituted to correct a bill of exceptions, or other record, not in aid of a pending-suit, an appeal will lie as in other actions. For the reasons stated the motion will be denied. Beakd J., and Scott, J., concur.