State ex rel. Alderson v. Jones

Baldwin, J. The first, and most important question to be determined, is whether the record (admitting the correction upon thq court record to have been properly made) discloses any such ruling upon the application of Moore to set aside the report of the canvassers, as could be appealed from, or that in any manner shows his right to appeal. The amended record shows that he offered to file a motion and affidavit, but was refused that right, to which he excepted. No bill of exceptions was signed by the court, nor docs such motion in any manner appear to have been a matter of record except by the certificate of the clerk, in which it is stated that the exhibit attached to the amended transcript, marked “A,” was the motion referred to in the record as made by Moore. It cannot be made a part of the record in this way. The mere certificate of a clerk, that a paper copied into the transcript is part of the record of a cause, is not of itself sufficient evidence of that fact. If it is not such a paper as is, by the provisions of the statute, part of the records of a cause, it can only be so made by order of the court. “Any paper used, or proceedings had in the District Court, r.ot made part of the records by statute, must be embodied in a bill of exceptions. Harmon v. Chandler, 3 Iowa 152; Garber v. Morrison & While, 5 Ib. 477.” An entry by the judge of the court, in his private calendar, or even by the clerk, in his record, that a ruling was made, that an exception was taken to such ruling, is not such an exception as is contemplated by law, or as would give the party any rights by such exceptions. It is merely a memo [14] randum for the convenience of the court, and to satisfy him, when a bill of exceptions is duly presented that the party did except at the time when such ruling was made. But we cannot conclude that the entry made by the court in May, 1859, was authorized by law. “ Entries made, approved and signed at a previous term, can only be altered to correct an evident mistake.” Code, section 1580. The docket of the judge presiding when Moore’s application was made, showed sufficient to have satisfied his successor that such application was made, refused and such ruling excepted to, but the record of the court is silent on this subject. There was no entry made to be corrected. If it was the entry in the main cause that the court undertook to correct, the inquiry then arises, was there any such mistake in that entry as would justify the court in amending it that length of time after it was made? We think not. There was no order in reference to the application of Moore a proper subject of entry until he had completed his bill of exceptions, and filed the same. Having failed so to do, the court had reasonable grounds to presume that he had abandoned his objections to its ruling and submitted to its correctness. Entertaining this view of the record, we think that the portion thereof relating to the motion and affidavit of Moore and the exhibit thereto attached, is not properly a part of the record of this cause, and should be stricken therefrom. This portion of the record being expunged, there is no order or judgment of the court that Moore could appeal from. But admitting that the record as claimed by the appellant is true and properly here we cannot consider that there was any ruling of the court below, from which Moore could appeal. Moore was not a party to this proceeding either as plaintiff or defendant. Nor had he ever asked to be made a party thereto. If he had such an interest in the result of the proceeding as would justify him in moving to set aside the order of the court, he should have asked leave to have had himself substituted as plaintiff or defendant. Until he [15] was thus made a party he was in no manner liable for costs, nor could he interfere with rights of the original parties. We also conclude that the appeal was not taken in time. The judgment of the court was rendered upon the 27th day of April, 1858. The notices of appeal were served on the 28th day of April, 1859, not within one year from the date of the judgment. Without passing upon the questions presented by appellant, as to whether tl^e alternative writ was properly issued, or whether the rc-canvass was correctly made, or whether such re-canvass in any manner affected the validity of the first canvass, we have concluded that the record does not disclose any right in Moore to appeal. Motion to dismiss the appeal sustained.