Demier v. Durand

By the Court, Paine, J. In this case a bill of exceptions was duly settled by the judge, both parties appearing. Af-terwards the appellant’s counsel persuaded him to sign another, which he did however at the appellant’s risk, stating that he was not aware of any practice or law authorizing such a proceeding. A motion was made here to dismiss the appeal, upon affidavits showing that no notice was given of the settlement of the second bill, and upon the ground that the printed case included both bills of exceptions so mingled together that it was difficult if not impossible to separate them. But after the explanations of the counsel, we became satisfied that the first bill could be separated from the other, and denied the motion to dismiss the appeal, holding however, at the same time, that we could only consider the first bill of exceptions. The case was then submitted upon that. We could not reverse the finding of facts by the court below, even though the evidence brought up did not sustain it; for it appears that a large part of the evidence is not contained in the bill of exceptions. The presumption would be that the evidence omitted was such as to support the finding. The rule is the same now in law and equity cases upon this point, though before the Code it was different. It is claimed that the court erred in admitting the depositions offered by the plaintiff; but the record does not disclose any objection or exception to their admission. A large part of the argument of the appellant’s counsel is based upon the supplemental bill of exceptions, which we cannot consider. We can see no error presented by the first. The judgment is affirmed, with costs.