Campbell v. Saratoga State Bank

Beard, Justice. These cases being appeals by different defendants in the same action, by agreement of the parties were consolidated and submitted to this court on the same record. The only error assigned in the petition in error in either case is the overruling of the separate motions of the plaintiffs in error for a new trial. There is no bill of exceptions which can be considered, and the only way a motion for a new trial can become a part of the record in this court is by incorporating it in a bill of exceptions. (Freeburgh v. Lamoureaux, et al., 12-Wyo. 41, 73 Pac. 545.) There is filed in this court a bundle of papers endorsed “Bill of Exceptions,"’ but there is nothing whatever showing or tending to show that it was ever filed in the office of the clerk of the district court, or was ever presented there for filing, or was ever in his possession so as to become a part of the record in that court. It bears no filing mark of the clerk of that court, nor is it in any form or manner certified by the clerk of said court to be a part of the record in the case. In addition to that there is another bundle of papers certified to' this court by the clerk of the district court under the se.al of the court certifying that said papers “comprising pages numbered 1 to 93 inclusive, are all the papers filed and of record in the office of the clerk of the district court” in said case. The purported bill of exceptions, containing 237 pages, is not attached to or in any way referred to or identified in the papers so certified. This court has always been quite liberal in considering imperfect records. In Commissioners v. Shafner, 10 Wyo. 181, where a bill of exceptions was stamped filed at a certain_ date, but the endorsement was not signed by the clerk, but the papers including the bill were duly certified by the clerk [361] to be all the papers filed in that court in the case, it was held sufficient to entitle it to be considered. To the same effect see Harden v. Card, 14 Wyo. 479, 85 Pac. 246. And in the recent case of Nicholson v. State, 157 Pac. 1013, a criminal case, (not yet reported) we reluctantly considered a bill which appeared on its face to have been filed in the office of the clerk of.the district court although not otherwise certified as a part of the record. In each of those cases there was some evidence apparent on the papers that they were a part of the files in the district court; but in the present case there is no such evidence apparent. In Moyer v. Preston, 6 Wyo. 308, 44 Pac. 845, 71 Am. St. Rep. 914, the court said: “There is a paper forming a part of the supposed record which appears to be signed by the judge of the district court as a bill of exceptions; it is, however, devoid of any filing mark indicating that it ever came into the hands or the office of the clerk of that court. It is not authenticated by any sort of certificate of such clerk, or by the seal of the court. * * ' * * * How is this court to know that any paper is one of the original files in the cause in the court below, unless that fact is certified to by the clerk? We may recognize the signature of the judge appended to a bill by reason of the personal familiarity of one or more of the justices composing this court with such signature, but we are not in a position to conclude that the paper thus seeming to be signed by the proper judge, was ever filed or ever become a part of the record, or is in the condition it was when signed, unless the same is authenticated by the officer whose duty it is to file and preserve the same.” Upon the record certified to this court in this case there are no questions presented for our consideration, and the proceedings in error will have to be dismissed; and it is so'ordered. In view of the increasing number of illy prepared, defective and imperfect records being filed in this court, it is not out of place to here suggest to the members of the bar that a bill of exceptions becomes a part of the record by being filed in the office of the clerk of the district court after [362] it has been allowed and signed by the court or judge allowing it and not otherwise; and when brought to this court as a part of the record in proceedings in error, it must be certified by the clerk of the district court to be a part of the record in the cause, the same as any other original paper filed therein, in order to have it considered by this court. Before filing a record in this court counsel should see that the record is properly prepared, paged, indexed and certified. By so doing considerable trouble and delay may be avoided. These remarks are intended to be general and not with reference to the present case in particular, and are made only on account of the increasing number of defective rec-ords being filed, apparently without having been examined by counsel before being filed in this court. Proceeding'in error dismissed. ■ PoTTER, C. J., and Scott, J., concur. ON MOTION TO REINSTATE. Per Curiam. The proceedings in error in these cases were dismissed June 29, 1916, on account of the defective record presented to this court. (158 Pac. 267.) Counsel for plaintiffs in error has filed a motion, supported by affidavits, for a vacation of the order of dismissal and for a reinstatement of the cases on the docket; and counsel for defendant in error have filed their motion to strike the motion of plaintiffs in error from the files. Both motions have been submitted together. Counsel for plaintiffs in error does not dispute the insufficiency of the record, as stated in the opinion, but seeks to excuse the imperfection and to be allowed now to withdraw the record and have it amended; and states in his affidavit that he sent the bill of exceptions to the clerk of the district court with directions to file it; that he was called away from home and was necessarily absent for several weeks, and did not have opportunity to see and examine the record before it was filed in this court; that he relied upon the clerk of the district court to file and properly certify all of the original [363] papers in the case to the Supreme Court in compliance with its order so to do, and that he had been informed by said clerk that he had done so. That he had no knowledge that the record and papers were not properly authenticated until advised by the-opinion of this court dismissing the proceedings in error. That his attention was not called to the defects at the oral argument. The clerk of the district court makes affidavit to the effect that the failure to file and authenticate the bill was his oversight and mistake and that he is willing to do so. The motion to strike plaintiffs’ motion from the files is based upon the ground that the application to vacate the order of dismissal and reinstate the cases should be by petition for rehearing and not by motion. We do not think that point well taken. (Cronkhite v. Bothwell, 3 Wyo. 736, 30 Pac. 4923 Gramm v. Fisher, 4 Wyo. 1, 31 Pac. 767, in which cases like motions were entertained.) As above stated, it is not claimed that there was error in dismissing the proceedings upon the record presented; and counsel do not ask for a rehearing on that question, but seeks to have the cases reinstated and be permitted to amend the record. It differs from a case in which it is contended that the order of dismissal was erroneous. A motion to strike a motion is not the proper practice. (Reid v. Fillmore, 12 Wyo. 72, 73 Pac. 849.) The motion to strike plaintiffs’ motion from the files is denied. This court can consider and determine cases brought to it by proceedings in error, only upon the record as made in the’ trial court, and cannot assume that that record is other than as certified to be such record. It is true that it is the duty of the clerk of the district court to properly file the papers in a case and when required to do so to properly authenticate and certify the record to this court; but it is likewise the duty of an appellant to see to it that the record is in proper form and duly authenticated. In the present case, counsel unquestionably had the purported bill of exceptions before him when he prepared his brief, and a casual examination [364] of it would have disclosed that it was not such a part of the record as could be considered by this court. 'Counsel insist that when he filed his application with the clerk of this court for an order to the clerk of the district court to certify and transmit the record in the case to this court, he had done all that was required of him by the statute and rules of court. No doubt he had done all that was required to procure such order; but the duty still rested upon him to see to it that such a record was presented to this court as it is authorized to consider. (Gramm v. Fisher, supra.) In Milliken v. Martinez, 159 Pac. (N. M.) 952, the court said: “Before filing the transcript of record with the clerk of this court, the attorney for appellant should see to it that it is properly prepared and certified, thus avoiding all objections in this regard.” We think the same duty rests upon counsel to see that the record is properly authenticated under the present statute, as was required prior to the amendment of 1901, when the plaintiff in error was required to file with his petition a transcript of the final record, with such original papers or a transcript thereof as are necessary to exhibit the errors complained of. We do not think the showing made by the affidavits in support of the motion disclose such unavoidable casualty as to entitle plaintiffs in error to a reinstatement of the cases on the docket. The motion to vacate' the order of dismissal and to reinstate .the cases on the docket is denied. Both motions denied.