Palmer Fruit Co. v. Palmer

PER CURIAM. The appeal is from an order denying defendant’s motion for a new trial made upon the minutes of the court. The respondent makes the point that the order must be affirmed because there is no properly settled case. When the order was filed on April 24, 1923, there was no settled case. The appeal was perfected in June, 1923. The files show no notice to settle a case and no stipulation to settle one, but does show that in October, 1923, the court appended to the stenographer’s transcript an order that it sho'uld stand for a settled case. The certificate fails to state that it contains all- the evidence. It might, nevertheless, serve as a bill of exceptions had it been properly settled. Section 7832, G. S. 1913, provides that the one preparing a case, or a bill of exceptions, must serve a copy thereof on the adverse party who shall have ten days within which to propose amendments, and after that time has expired the same may be presented upon' a notice of five days to the judge for settlement and allowance. The record and files show no proof of service of a copy of the proposed case upon respondent, and no notice or proof of notice of application to the judge for settlement o.r allowance of the same. Incidentally, attention may be called to the fact that the error chiefly relied on for a reversal is an objection and exception interlined in the typewritten transcript, apparently in the handwriting of defendant’s attorney — the only written interlineation found therein. For want of a properly settled and certified case the order must be affirmed.