Laws

-; The court may, at its Post Date: Tue, 29 Jul 2008 5:39:47 +0000
5 / SUBSTANTIAL PROOF ONLY REQUISIT e The exceptions so alleged and tendered must be proved substantially, literal accu- racy not being require d 6 1 Phillips v Hoyle, 4 Gray (Mas S) 568; Whitford v Knowlton, 6 Allen (Mas S) 557; Perkins v Harper, 2 Stew (Ala) 478; Tombeckbee Bank v Malone, I Stew (Ala) 269 2 Phillips -v Hoyle, 4 Gray (Mas S) 568 To Trial Judg e In California it is held that notice of the application should be given to the trial judg e In re Hawes, 68Cal413 Defective Notice and Servic e In Phil- lips -v Hoyle, 4 Gray (Mas S) 568, giving the adverse party only eight instead of ten days' notice of the appli- cation, or failing to serve and file a petition, was held fatal, although a copy of the exceptions sought to be proved, and an affidavit of their truth and of the party's intention to estab- lish them before the Supreme Court, were duly served and file d Criminal Case S The thirty-second rule of the Supreme Judicial Court of Massachusetts, requiring notice of a petition to establish exceptions, ap- plies to criminal as well as to civil action S Co M v Wilson, 99 Mas S 427 3 Kaiser v Alexander, 144 Mas S 75; Ela v Cockshott, 119 Mas S 416; Priest v Groton, 103 Mas S 530; Cullen v Sears, 112 Mas S 299 4 Kaiser v Alexander, 144 Mas S 75; Sawyer v Yale Iron Works, 116 Mas S 424 So in Sawyer v Yale Iron Works, Ii6 Mas S 424, it was said: " If no ob- jection is made to the form, the time of filing, or the service of the petition, the practice is to refer it to a commis- sioner, to hear the parties and report to the court the facts bearing upon the question whether the truth of the exceptions is established; but that question is a matter of law to be decided by the court upon the facts reporte d" Diligence Require d The exceptions should show reasonable diligence in applying to the commissioner for a hearing, or the petition may be dis- misse d Freeman v Griggs, 116 Mas S 302 Motion to Dismis S A motion to dis- miss the petition to establish excep- tions must be made seasonably, or it is waive d It comes too late, therefore, after a commissioner has been ap- pointed to take the evidence thereo N Aldrich v Brown, 103 Mas S 527 5 Kaiser v Alexander, 144 Mas S 75; Sawyer v Yale Iron Works, no- Mas S 424; Elaz'. Cockshott, 119 Mas S 416; Cullen v Sear S 112 Mas S 299 Recommission of Report.-; The court may, at its discretion, recommit the report to the commissioner, with in- structions to report the evidenc e Kai- ser v Alexander, 144 Mas S 71 WaiveRThe party does not waive his right to move for such recommittal by failing to request the commissioner to report the evidence on the hearing to prove exception S Kaiser v Alex- ander, 144 Mas S 71 6 Sawyer v Yale Iron Works, 116 Mas S 424; Cullen v Sears, 112 Mas S 299; Crow v Stowe, 113 Mas S 153; Markey v Mutual Be N L In S Co, 118 Mas S 178 In Sawyer v Yale Iron Works, 116 Mas S 424, it was said : " If the excep- tion alleged does not state the ruling excepted to, and the evidence to which it is applied, with substantial accuracy, so as to present the same questions, and in the same aspects, to this court as to the court below, the petitioner is not entitled to be heard in this court 4 Signature by Bystanders A GENERALL Y In other states it is provided that where a trial judge refuses to sign the bill pre- sented, the exceptant may have it authenticated by bystander S 1 b WHERE COMPETENT.

Autor of the post: Undefined

3 C REQUISITES Post Date: Tue, 29 Jul 2008 5:27:35 +0000
In order to make this remedy avail- upon the exceptions, either in the form in which they are presented in the court below, or in the form in which it is made to appear they should have been presente d" Certificate of Disallowanc e The cer- tificate of disallowance made by the trial judge is prima-facie, but not con- clusive, evidence of the trut H Sawyer v Yale Iron Works, 116 Mas S 424; Bottum v Fogle, 105 Mas S 42 Immaterial Variatio N Mere verbal errors or immaterial differences in the form of statements will not defeat the right of a partyto prove his exception S Sawyer v Yale Iron Works, 116 Mas S 424; Bates v Santom, 116 Mas S 120 When Truth Deemed Establishe d Where the report of a commissioner, to whom a petition to establish the truth of exceptions has been referred, states that the bill of exceptions ten- dered would be conformable to the truth with certain words stricken out and certain other words added, and the changes suggested are immaterial, the truth of the exceptions will be taken as establishe d Farnsworth v Lowery, 134 Mas S 512 Waiver of Some Exception S Where a party alleges several exceptions on different points, some of which he does not prove, he may waive those and argue the exceptions which are prove d Cullen v Sears, 112 Mas S 307; Co M v Marshall, 15 Gray (Mas S) 202 Disallowance Deemed Corre Ct Where the report showed that material evi- dence introduced at the trial upon one of the questions presented by the ex- ceptions was not stated in the bill of exceptions presented held, that the bill of exceptions, so far as related to this question, was rightly disallowe d Glidden v Child, 122 Mas S 433 1 In Missouri, where the judge re- fuses to sign a bill of exceptions as untrue, the bill may be signed by three bystanders and again presented to the judge for permission to fil e Where he refuses he should certify that it is untrue, and the issue as to whether the bill be true or untrue will be tried by the appellate court on affidavits, as provided by the statut e Mo Rev Stat, 36, 37, 38, 40, 41, 42, 43 State v Field, 37 Mo App 83; State v Hro- nek, 95 Mo 79 Mississipp I Section 646 of Missis- sippi Code 1871 provides that where a judge refuses to sign the bill of excep- tions to any opinion, decision, or charge given or made on the trial of any cause or motion in such court, when such bill of exceptions is tendered to such judge in writing it shall be lawful for any two attorneys at law who may have been present at the time of giving or making such opinion, decision, or charge, and of the refusal of such judge to sign such bill of exceptions, as aforesaid, to sign the same, which bill of exceptions so signed shall have the same force and effect as if the same had been signed by such judg e Constitutiona L As it is competent for the legislature to abolish bills of exceptions altogether and substitute other modes for bringing up matters in part, so it may constitutionally pro- vide for their authentication or certi- fication by bystanders or counse L Van Buren v State, 24 Mis S 515; Vicksburg, etc, RCo v Ragsdale, 51 Mis S 451 Statutory Complianc e A bill so au- thenticated must have not only the signatures of the bystanders, but must comply with all the statutory requi- sites for such a bil L Knight v State, 7 Tex App 206 Ti Me Unless statutes otherwise provide, a bill cannot be authenticated by bystanders after the time for the trial judge to settle and sign has ex- pire d In St John v Wallace, 25 Iowa 21, it was held that a bill could not be settled by bystanders after the termi- nation of the ter M But where so settled, and no objection made until judgment is rendered on appeal, the appellee has no remed Y Bellows v, Tod, 52 Iowa 359 Attorneys of the party cannot sign as such bystander S Simon v Weigel, 10 Iowa 505 Affidavit of Trial Judg e In Iowa it was held that where a judge signed an incorrect bill of exceptions his affidavit might be used to surtain a correct bill signed by two bystanders on the trial, as provided by statut e Woodworth v Byerly, 43 Iowa 108 able the record must show that the bill of exceptions was first pre- sented to the trial judge and rejected by hi M 1 C WHAT CERTIFICATE MUST Sno W The certificate of the bystanders must show that they were in fact bystanders, 3 pres- ent in court when the facts in dispute occurred, 3 cognizant of the facts, 4 and that they were not participants in the cause, 5 or interested therei N 6 5 Bemedy where the Bill is Irregular A GENERALLY Motion to strike out. The settlement and signature of the bill is a determina- tion by the trial judge that the proceedings preliminary thereto were regular, 7 and the determination is reviewable only on motion to strike out, not on appeal from the decision in which the ap- peal is take N 8 1 Fordyce v Jackson, 56 Ark 594; Houston v Jones, 4 Tex 172 Where it is sought to establish a bill of exceptions by affidavits of by- standers, as provided for by statute, the record must disclose that the ex- ceptions in question were presented to the trial judge and rejected by him, otherwise the affidavits cannot be filed and become part of the record in lieu of the bil L Fordyce v Jackson, 56 Ark 594 Kefusal to Fil e Where the trial judge refuses to sign a bill, but permits one signed by bystanders to be filed, the record entry should show that fa Ct Where he refuses permission to file, his reasons therefor should be stated, and the original bill with copies of affi- davits filed in its support should be sent u P The bill in such case does not become part of the recor d Down- ing v Schacklett, 49 Mo 86; Bowen v Lazalere, 44 Mo 383 Otherwise the bystanders are incompetent to a Ct Edgar S Caldwell, MorR(Iowa) 434 The refusal of the judge to sign may be proved by bystander S Craig v Andrews, 7 Iowa 17 Texa S And in Texas the judge must attach his certificate showing the cause of his refusa L Houston v Jones, 4 Tex 172 2 Houston v Jones, 4 Tex 172; Heidenheimer v Thomas, 63 Tex 291 3 Houston v Jones, 4 Tex 172; Heidenheimer v Thoma S 63 Tex 291 4 McKay v Friebele, 8 Fla 21 5 Thornily v Pierce, 10 Colo250 6 Murphy -v Lucas, 2 Ohio 255; McKay v Friebele, 8 Fla 21 And itwas also held in the above case that the certificate of the bystanders should be given at the time of the occur- rence of the fact, before conversation modifies the impression S Such a rule would seem impracticable in most cases because it is evident that it cannot be inferred that such certificates will be needed, until the bill is rejected by the judg e Houston v Jones, 4 Tex 172 Presumed Respectabl e The bystand- ers signing will be presumed respect- able persons unless it appears that the appellee objected to them and showed the contrar Y Hixon v Weaver, 9 Ark 133 Judge Doubting Accurac Y A trial judge should not permit a bill of ex- ceptions signed by bystanders to be filed where he doubts its accurac Y Houston v Jones, 4 Tex 170 7 Bergenthal v Fiebrantz, 48 Wi S 440 8 Bergenthal v Fiebrantz, 48 Wi S 440; Nilson v Morse, 52 Wi S 241; Magill v Brown, 98 111 235; Hyde Park v Dunham, 85 111 569; Fech- heimer v Trounstiene, 12 Colo284; Smith v State, 20 Fla 839; Price v Sanchez, 8 Fla 136; Broward v State, 9 Fla 422; Bardin v L'Engle, 13 Fla 571; Potsdamer v State, 17 Fla 895 In Oregonit was held, where the bill was submitted to the trial judge seasonably, and before the time to file the transcript elapsed, but was not settled and signed until after such time had expired, that a motion to dismiss would be overruled, and cross-motion for leave to complete the transcript allowe d Washburn v Interstate InveSt Co (Oregon, 1894), 36 Pac Rep 533 So in Dean v Gridley, 10 Wen d ( N Y) 256, it was held that a defend- ant in error could not, on the argument b WHERE MOTION MAD e The motion to strike out may be made in the trial court before jurisdiction of the cause has been transferred to the appellate court by the taking of an appea L 1 An appeal may be taken from the order granting or denying the motio N 2 After an appeal has been taken the motion should be made in the appellate court. 3 C REQUISITES OF MOTIO N The motion is technical, and must specifically point out the defect in the bill of exceptions complained of, or it will not be regarded 4 unless the bill is so defective as to be absolutely voi d 5 of a cause, take advantage of the fact that a bill of exceptions purports to have been signed at a time subsequent to the trial; if the error be pointed out on the argument the appellate court could allow the bill to be amend- e d If the bill was improperly allowed or erroneously dated, the remedy was to set it aside on special motio N Objection Sufficient.

Autor of the post: Undefined

2 Mere irregularity alone Post Date: Tue, 29 Jul 2008 5:08:42 +0000
In Indiana the appellate court will refuse, on objec- tion of adverse counsel, to consider a bill of exceptions, or parts thereof not properly framed or not properly in the record, although no motion to strike out is mad e Seymour Woollen Fac- tory Co v Brodhecker, 130 Ind 389 Dismissal of Appea L A motion to dis- miss the appeal is not proper, unless statutes expressly so provide, for ir- regularities in the bill, as the appellate court retains jurisdiction to review the record propeRCarlson v Beck- man, 35 Neb 392 ; Hollenbeck v Tarkington, 14 Neb 430; Mewis v Johnson Harvester Co, 5 Neb 217; Baldwin v Foss, 14 Neb 455; Doug- lass v Luggs, 36 111 App 555; Mar- seilles v Howland, 34 111 App 349 In Washington, however, the appeal may be dismissed where the exceptant fails to file a bill of exceptions or statement of fact S Cochrane v Gu N- derson (Wash, 1895), 39 Pac Rep 378 1 Oliver v Town, 24 Wi S 512; Bergenthal v Fiebrantz, 48 Wi S 435; Sexton v Willard, 27 Wi S 465; Lum v Hoag, 30 Wi S 159 2 Oliver v Town, 24 Wi S 512 3 Oliver v Town, 24 Wi S 512; Tollensen v Gunderson, I Wi S No On Appeal from Magistrat e An ob- jection to the sufficiency of a bill of exceptions, on appeal from the justice of the peace, must be made in the in- termediate tribunal of appeal or it will be deemed waived on further appeal to the Supreme Court. Howley v Robeson, 14 Neb 435 WaiveRWhere no motion is made technical irregularities are waived, unless such as to render the bill entirely voi d Nilson v Morse, 52 Wi S 255; New Albany, etc, RCo v Huff, 19 Ind 315 When Mad e Where the motion is made in the appellate court the objec- tion is waived unless the motion is made before submission of the caus e Matteson v Curtis, n Wi S 424; Fitz- patrick v, Cottingham, 14 Wi S 219 So where a bill is served and settled, after the time limited by a directory statute, and appears properly in the record, it will be presumed on appeal that the trial judge allowed it to be served and settled out of time for sufficient reaso N Nilson v Morse, 52 Wi S 255 But in New Jersey 'it is held that the appellate court may, even after joinder in error, look into the circumstances under which a bill of exceptions was executed, and where improvidently executed may set them asid e Agnew v Campbell, 17 N J L 291; Shipherd v White, 3 Co W ( N Y) 32; Sikes v Ransom, 6 John S ( N J) 279 4 Walker v Morse, 33 Neb 650 5 Walker v Morse, 33 Neb 650 What Questions Properly Allowe d A motion to quash a bill of exceptions is properly based only on some objection to the bill itself as to the mode of its preparation and signin g Phoenix In S Co v Readinger, 28 Neb 587; Holloway v Schooley, 27 Neb 556 It cannot consequently be predicated on the failure to file a motion for new tria L Phoenix In S Co v Readinger, 28 Neb 587 Imperfect Bil L Where blanks are left in a bill of exceptions for docu- mentaryevidence and not so referred to d MOTION TO REMIT Generall Y Where the bill of exceptions has not been settled in accordance with the law the exceptant may properly move the appellate court to remit the record for cor- rectio N 1 TJpon What Base d The motion to remit the bill for correction must be based upon affidavits showing clearly that mistakes have been made prejudicial to the appellant. 2 Mere irregularity alone is not sufficient.

Autor of the post: Undefined

The motion to re- mit Post Date: Tue, 29 Jul 2008 4:58:32 +0000
3 A motion to strike out is not a proper remedy for omissions or false recitals in the bil L 4 The that they can be identified, the bill may be stricken out on motio N Sexton v, Willard, 27 Wi S 465 Test of Irregularit Y And where a bill is signed under such circumstances as would not warrant the appellate court in issuing a writ of mandamus to sign it, it may be set aside on motio N Agnew v Campbell, 17 N J L 291 Where not Allowabl e A motion to suppress a bill of exceptions will not be granted because the judge signed it in the absence of the defendant's counsel, the associate counsel being present and objecting to the signature on that groun d Ryan v Kilpatrick, 66 Ala 332 Fraudulent Bil L A motion to sup- press is proper and will be granted where it is shown that the bill was fraudulently or surreptitiously ob- taine d But the mere fact that the trial judge who signed the bill testifies that he did not clearly recollect the facts certified to in the bill, is not sufficient. Weir v Hoss, 6 Ala 885; Decatur Branch Bank v Kinsey, 5 Ala 9 1 Tollensen v Gunderson, i Wi S no; Dean v Gridley, 10 Wen d ( N Y) 255; Delevan v Boardman, 5 Wen d ( N Y) 132; Pelletreau v Jackson, 7 Wen d ( N Y) 471 ; Liv- ingston v Miller, 7 How Pr ( N Y Ct of App) 219; Agnew v Campbell, 17 N J L 291; Hoagland v Van Etten, 27 Neb 705 Not Proper on Motion to Strik e The appellate court will not order a re- settlement of the bill upon the appel- lee's motion to strik e The exceptant must make an appropriate motio N Sexton v Willard, 27 Wi S 465 Motion to Eestore to the Recor d Where the bill has been once stricken from the record the proper remedy, where a remedy exists, is a motion to restore it or rescind the order striking it therefro M It is not sufficient, where stricken from the record be- cause not filed in time, to refile it within the time allowed by an amend- ment to the recor d Brady v Pull- man Palace Car Co, 42 111 App Time when Mad e In Ohio it is held that a motion to remit the bill of exception for the incorporation of omitted evidence cannot be granted after the time designated by law for signature of the original bill expire d Haberty v State, 8 Ohio CiRCt Rep 262 2 Scribner v Gay, 5 Mich 514 3 Scribner v Gay, 5 Mich 514 Motion to Remit. The motion to re- mit will be dismissed, with costs, where the appellate court can see that the matter proposed to be in- corporated is immateria L Spensley v Lancashire In S Co, 62 Wi S 451; Pelletreau v Jackson, 7 Wen d ( N Y) 471; McClure v Missouri River, etc, RCo, 9 Ka N 373 As where the bill certified that the jury were charged and that under such charge they found, the court refused to direct an amendment stating that the verdict was found by consent, on the ground that the facts could not be reversed on error, whether found by court or jur Y Pelletreau v Jackson, 7 Wen d ( N Y)47 I 4 In Scribner v Gay, 5 Mich 511, it was held that a motion to strike out a bill of exceptions because the appel- lant had followed the practice in set- tling the case instead of that pre- scribed by the rules for settling excep- tions, would not be granted where the mistake was shown to be common to both parties, and where no showing was made by the appellee that he was injured by the technical irregulari- ties ensuin g The appellate court cannot amen d Scribner v Gay, 5 Mich 511 motion to remit should be made on notice to the appelle e 1 XIv ALTERATIONS AND AMENDMENTS 1 Alteration S After the attestation of the bill any alteration therein by obliteration is illegal, 2 and the appellate court will not return it for recertifica- tion, whether the alteration was fraudulent or not.

Autor of the post: Undefined

Mynatt v Hubbs, i Heis Post Date: Tue, 29 Jul 2008 4:40:32 +0000
3 2 Mutilation S Mutilations in the bill of exceptions, where un- explained, will be presumed to have been made before signatur e 4 Unless affirmatively shown to be fraudulent they will not be pre- sumed to have been so made by the exceptant or his attorne Y 5 Practice on Eemissio N Where the bill is returned by the appellate court for correction, amendments may be proposed by either part Y State v Clark, 67 Wi S 229 When Mandamus will not Issu e Where a motion to resettle a bill al- ready settled and signed by the trial judge has been made on the ground of its inaccuracy, and was overruled, a mandamus will not issu e In re Streep (U S, 1895), 15 Supreme Ct Rep 358 WaiveRWhere an appellee omits to make an objection in the intermediate appellate court that the bill of excep- tions fails to show proper exceptions to raise the errors urged, the objec- tion is waived on further appea L Lawrence Nat Bank v Le Moyne, 127 111 253 1 Hoagland v Van Etten, 27 Neb 2 Perry v Central RCo, 74 Ga 411; Scott v Central RCo, 77 Ga 450; Snell v Smith, 78 Ga 355; Wing v Harris, 75 Ga 236; Markham v Huff, 72 Ga 106; Darby v Wesleyan Female College, 72 Ga 212; Davis v Bennett, 72 Ga 763 Complete when Signe d The bill must be complete when the trial judge affixes his signatur e Vincennes Uni- versity v Embree, 7 Blackf (Ind) 461; Spears v Clark, 6 Blackf (Ind) 167; Huff v Gilbert, 4 Blackf (Ind) 19; Mills v Simmonds, 10 Ind 464; Irwin v Smit H 72 Ind 482; Marshall v Livingston, 77 Ga 21; Williams v Clarke, 70 Ga 405; Perry v Central RCo, 74 Ga 411; Heard v Heard, 8 Ga 380; State v Powers, 14 Ga 388; Jones v State, 64 Ga 697 Signature in Blan K So the judge cannot, unless authorized by statute, authenticate a bill of exceptions by signature in blank, where the bill is subsequently filled up by the cler K Henry County v Slater, 52 Ind 171; Goodwine v Crane, 41 Ind 335; Stew- art -v Rankin, 39 Ind 161 In Stewart v Rankin, 39 Ind 161, it was said: "A judge may very proper- ly sign a bill of exceptions with a blank, where the purpose is to make a part of the record some written instru- ment or documentary evidence, but he should never sign a bill of ex- ceptions, purporting to embody the parol testimony, until such testimony has been written out in full in such bill of exception S" Effect of Subsequent Alteration S Al- terations made in the bill after that time will be deemed made by the judge in his private capacity as an individua L State v Powers, 14 Ga 388 Therefore the bill cannot be affected by subsequent admissions of the judg e Weir v Hoss, 6 Ala 884; Pool z/Cahawba, etc, RCo, 5 Ala 237 Amendments allowed by the trial judge to a bill of exceptions must be incorporated in the bill as finally set- tled and signe d Killops v Stephens, 66 Wi S 571; Tyson v State, 14 Tex App 388 Testimon Y The judge cannot, there- fore, subsequently bear testimony as to the truth of the statements therein contained, revise and correct it, and again certify it, adding a note explain- ing what had been don e Scott v Central RCo, 77 Ga 450 3 Wing v Harri S 75 Ga 236; Markham v Huff, 72 Ga 107; Darby v Wesleyan Female College, 72 Ga 212; Davis v Bennett, 72 Ga 762 4 Clark v Cell, 17 Neb 285 5 Clark v Cell, 17 Neb 285 Rule in Georgia Where amended by striking out or altering portions of the bill as written, it is held in Georgia that the judge should refer thereto in his certificate, so that it may appear to have been done by his directio N Clayton v May, 68 Ga 27; Poppell v Thigpen, 74 Ga 412 Proper Practic e Proper practice requires that the bill should be entirely rewritten, where erasures are made therei N 1 3 Amendments A WHERE MAD e The court to which the appeal is taken has no power to amend the recor d* It acts only as the record of the court below as made up by the court in which the trial proceedings took plac e 3 Defects therein are amendable only in the trial court, 4 and the appellate court can take cognizance of such amendments only when a proper appli- cation for a certiorari has been made and granted, and the amended record sent up in accordance therewit H 5 And the corrections should appear in the bill of exception S McCall v Walter, 71 Ga 292; Wing v Tomp- kins, 60 Ga 447 Where the erasure of material facts of the bill of exceptions is unexplained by the certificate attached thereto, the appeal will be dismisse d Poppell v Thigpen, 74 Ga 412 Where a judge alters a bill, and so states in his certificate, so as to show alterations were made before signing, the appeal will not be dismissed in the absence of suggestion of frau d Johnson v Johnson, So Ga 260 By Cler K Where the clerk has once received a bill for filing he has no authority to alter it or permit the clerk to alter it. Darby v W T esleyan Female College, 75 Ga 212 Notes to Writ of ErroRIt is in- correct practice to correct it in impor- tant particulars by notes appended to the writ of error, and the Supreme Court may, at discretion, disregard the M McCall v Walter, 71 Ga 292 1 Clayton v May, 68 Ga 27 Presumptio N Where the clerk be- low transmits a certified copy of the bill of exceptions from the official copy retained in his office, and it con- forms to the original, with the parts stricken out omitted, it will be pre- sumed that they were stricken out by order of the judg e Clayton v May, 68 Ga 27 2 Cluck v State, 40 Ind 263 3 Cluck v State, 40 Ind 263 4 Cluck v State, 40 Ind 263 Rule in Missour I But in Missouri the Supreme Court, on clear and con- clusive evidence that an amendment to the bill of exceptions should be made, may alter the amendment with- out returning it to the trial court for that purpos e Darrier v Darrier, 58 Mo 222 5 Georgia Harrington v Roberts 7 Ga 511; Ganahl v Shore, 24 Ga I Indiana Cluck v State, 40 Ind 263; Doe Owen, 2 Blackf (Ind)452; Jones v Van Patten, 3 Ind 107; Cole- rick v Hooper, 3 Ind 316 New York Onondaga County Mut Co v Minard, 2 N Y 98 Ohio Smith S Board of Education, 27 Ohio St 44 United State S Stimpson -v West Chester RCo, 3 How (U S) 553 In Massachusetts it is held that a bill of exceptions cannot be amended in the supreme judicial court on agree- ment of parties, without the consent of the trial judg e Ashley v Root, 4 Allen (Mas S) 504 But on a petition to establish excep- tions, where there is an omission of de- tails which can readily be supplied, and which ought to be added in order to properly present the exceptions relied upon, the supreme judicial court may suggest needed amendments to the ex- ceptant, and allowthe bill as modifie d Morse v Woodworth, 155 Mas S 233 Motion to Amen d Consequently a motion will not be heard by the Su- preme Court to amend the bill on affi- davits showing that it was duly signed in term ti Me Kitchen v Moye, 17 Ala 394 Or to correct defects erased by agreement from a properly prepared bil L Pearce v Clements, 73 Ala 257; Chapman v Holding, 54 Ala 61 Signature of Counse L Where a stat- ute requires the bill to be signed by counsel of exceptant, it cannot, where unsigned be amended in the appel- late court by the attachment of coun- sel's signatur e Wellborn v Atlanta Conso L St RCo, 92 Ga 577; McAl- ister v Eastman, 92 Ga 448 When LoSt Where the clerk makes affidavit that the original bill was lost in transit a copy thereof may be estab- Continuanc e The case will be continued in the appellate court, to allow the amendment to be mad e 1 Amendment by the Recor d But where a defect in the bill or in names of parties is clearly amendable by the statements properly embodied in the transcript, the appellate court may permit amendment to be made, even upon motion of adverse party to dismis S 2 b IN THE TRIAL COURT (i) At Trial Ter M Where the bill of exceptions has become a part of the record by signature and filing, it cannot be amended by the judge ex parted And as to lishe d McDaniel v Brakefield, 66 Ga 249 When Mad e But the motion must be made before the conclusion of the call of the docket of the circuit to which the case belong S McDaniel v Brakefield, 66 Ga 249 Lost PapeRSo where the bill of ex- ceptions shows a paper to have been lost which the trial court can supply, the cause may be remanded to supply it. Mynatt v Hubbs, i Heis K (Tenn) 1 Knox v McFerran, 4 Colo349; Wolfley v Lebanon Mi N Co, 3 Colo296; Brooks v Bruyn, 40 111 65; Doe v Owen, 2 Blackf (Ind) 452 How Grounds Show N The grounds for granting a revision of the record must be shown on affidavit.

Autor of the post: Undefined

Cam- eron -v Shephard, 71 Post Date: Tue, 29 Jul 2008 4:27:15 +0000
O'Flynn v Holmes, 7 Mich 454; Cool v Snover, 38 Mich 562 Timely Application must be Had e After the cause has been submitted the record cannot be submitted for amendment. Kneeland v Gilman, 24 Wi S 39 2 Parks v Johnson, 79 Ga 567; Sims v Hatcher, 77 Ga 389; Epping v Aiken, 71 Ga 682; Lewis v Chis- holm, 68 Ga 46 Amendment MisnomeRAn amend- ment as to names of the parties to the bill may be made even on motion to dismiss by adding names from the record; additional service unneces- sar Y Sharp v Findley, 71 Ga 668; Dupon v McLaren, 63 Ga 470 The acceptance of service, however, on behalf of parties defendant and plaintiff in the bill " and others " does not act as a valid acknowledgment of service as to those parties subse- quently added by amendment. Cam- eron -v Shephard, 71 Ga 781 So the bill of exceptions may be amended by the record to make it state that a motion was granted to dismiss objections filed by creditors instead to dismiss the appea L Parks v Johnson, 79 Ga 569 But where the transcript is defec- tive as to the matters in which the bill of exceptions should be amended, it cannot be referred t O Hardin v Lovelace, 79 Ga 210 3 Alabama Pearce v Clements, 73 Ala 257; Kitchen v Moye, 17 Ala 394; Decatur Branch Bank v Kinsey, 5 Ala 9 Georgia Heard v Heard, 8 Ga 380; State -v Powers, 14 Ga 388 Indiana Hamilton v Burch, 28 Ind 233 Kentucky Givens v Bradley, 3 Bibb (Ky) 192 Maine Shepard v Hull, 42 Me Mississipp I Bridges v Kuykendall, 58 Mis S 828 Texa S Conrad v Walsh, i Tex App Civ Ca S, 231 There are three parties to a bill of exceptions, "the parties litigant and the presiding judg e It is not compe- tent for the parties to the suit, or their counsel, by agreement, to make mate- rial alterations in a bill of exceptions, after it has been allowed and signed by the presiding judge, without con- sulting him and obtaining his assent.

Autor of the post: Undefined

4 amendment is based Post Date: Tue, 29 Jul 2008 4:13:59 +0000
" Shepard v Hull, 42 Me 578 By Stipulatio N Nor can testimony or other matters be added to the bill after signature, by stipulation of counsel alon e Wessels v Beeman, 66 Mich 343; Niagara F In S Co v De Graff, 12 Mich 10 All the Evidenc e A court cannot amend the bill after the close of the term by the insertion of the clause, after statement of the evidence, " and this was all the evidence given in the caus e" Seig v Long, 72 Ind 18 Before Filin g As it is the duty of time, the general rule is that he may amend the bill at the trial term, even after settlement, upon notice to both parties and granting an opportunity to be hear d 1 the trial judge to make a bill of excep- Minonk, 62 111 121; Newman v Ra- venscroft, 67 111 496; Heinsen v Lamb, 117 111 553 Matters in Pat's may be incorporated into the bill as an amendment after the expiration of the time allowed for presentation and filin g Pollard v Rutter, 35 111 App 370 In England it was held that an amendment to the bill might be made after the affixation of the judge's seal, as an amendment correctly stating the time of exception S Doe -v Tay- lerson, 3 p d 539 Subsequent Evidenc e After signa- ture and sealing of a separate bill of exceptions it is no error in the trial judge to refuse to incorporateevidence given afterward S Donohue v Shed- rick, 46 Md 226 By Whom Mad e The amendment must be made by a judge who would have power to sign the original bil L So in Vermont it is held that the pre- siding judge of the trial court has no authority to amend a bill of excep- tions after the expiration of his term of offic e Phelps v Conant, 30 Vt 277 In Illinois it is held immaterial that an amendment to the bill of exceptions is made by the successor to the trial judg e Horton v Smith, 46 111 App 241 See Signature; Who May Sign the Bil L The court may allow the motion to amend the bill of exceptions although the judge who hears the motion did not sign the bil L Baker v Kansas City, etc, RCo, 122 Mo 533 WaiveRIn Sutherland v Round, 57 Fed Rep 467, it was said that the omission or oversight of the ex- ceptant to note his exceptions to a charge in a bill of exceptions was a waiver thereof, and would not autho- rize an amendment at a subsequent ter M Should be Made with Cautio N A trial court should act cautiously in amend- ing the bill of exceptions, and proceed only where the amendment is essential and clearly appropriat e Roblin v Yaggy, 35 111 App 537 Courts will act with circumspection in making amendments to bills of ex- ceptions, and the evidence on which the tions speak the truth, he may make proper amendments at anytime before the bill is filed or any time before the time for filing has expire d Long- worth v Higham, 89 Ind 352 Before Close of Tria L And in Louisi- ana it is held that while a bill of ex- ceptions constitutes, when signed and filed, a part of the record, yet, for pur- pose of accuracy and correctness of statement, it is under the judge's supervision and control during the progress of the trial; and that after signature a bill taken on the trial might be amended as to a statement of facts before the close of the tria L State v Joseph, 45 La An N 903 1 Illinoi S Pollard v Rutter, 35 111 App 370 Minnesota State v Laliyer,4 Min N 368 New Hampshire State v Lord, 5 N H 335- In Givens v Bradley, 3 Bibb (Ky) 195, it was said, "That the court had the power during the term to correct any error or supply any omission which might have taken place in preparing the bill of exceptions, there can be no doubt. It cannot be supposed that the power of the court over bills of excep- tions absolutely ceases upon their signing them; and if it does not, the only limitation in point of time for the exercise of that power, must be at the end of the term at which exceptions may be file d" And in Shepard v HAH, 42 Me 577, it is held that if before the adjourn- ment of court without day, material errors are brought to his attention, he may, on notice to excepting party, re- quire him to amend according to the truth, and in case he refuse, the judge may withdraw his signature from the bil L In Illinois it is held that when the first bill of exceptions is insufficient from the omission of matters essential to the determination of the cause, the exceptant has the right, in a proper case, to an amended bill of exceptions signed and sealed by the same trial judg e People v Anthony, 129 111 220; Brooks v Bruyn, 40 111 64; Wallahan v People, 40 111 104; Goodrich v (2) After Expiration of Ter M The rule obtains in some decis- ions that the trial court cannot amend the bill of exceptions after the termination of the term at which the judgment appealed from was rendere d 1 The better rule is that the trial court may amend at a subsequent term where a proper proceeding is taken for that purpos e 3 (3) Based on Memorand A Where the amendment is made before the end of the trial term the court may amend the bill by refer- ence to its own memory ; 3 but thereafter it cannot amend with- out some minute or memorandum as evidence on which to base the amendment. 4 amendment is based will be scrutinized with severity, and must be satisfac- tor Y Harris v Tomlinson, 130 Ind 426; Seig v Long, 72 Ind 18; Make- peace v Lukens, 27 Ind 435 1 Alabama Decatur Branch Bank v Kinsey, 5 Ala 9; Dudley v Chilton County, 66 Ala 593; Chapman v Holding, 54 Ala 61; Weir v Hoss, 6 Ala 881; Posey v Beale,69Ala 32 Tennessee Jones v Burch, 3 Lea (Tenn)749; Steele v Davis, 5 Heis K (Tenn) 75; Kennedy v Kennedy, 13 Lea (Tenn ) 25 ; Davis v Jones, 3 Head (Tenn) 605 Texa S In Texas it is held that where the bill of exceptions contains a misrecital of fact it should be cor- rected during the ter M After signa- ture and incorporation into the record it imports verity and cannot be ques- tioned, as it recites facts occurring during the tria L If it contains an error as to facts referred to, counsel should refuse to accept it, and have the bill prepared under article 1366 Rev St Tex St Louis, etc, RCo v Whitaker, 68 Tex 630 In Vacatio N The bill of exceptions cannot, without express statutory au- thority, be amended in vacatio N De- vine v People, 100 111 290; Wallahan v People, 40 111 102; Goodrich v Minonk, 62 111 121; Newman v Ra- venscroft, 67 111 496 Where Filed in Vacatio N Where a bill of exceptions may by law be pre- pared and filed in vacation, the ad- verse party may move before the trial court for corrections theret O Han- nah v Dorrell, 73 Ind 465 U S Supreme Court.

Autor of the post: Undefined

Kingfisher Bank v Smith'(Ok La Post Date: Tue, 29 Jul 2008 4:03:32 +0000
The doctrine of the United States Supreme Court is that any fault or omission in framing a bill of exceptions, being the act of the party and not of the court, cannot be amended after the expiration of the term at which it is filed, as a misprision of the clerk in recording inaccurately or omitting to record an order of the court might b e Michigan In S Bank v Eldred, 143 U S 293 2 Arkansa S Churchill v Hill, 59 Ark 54; Martin v St Louis, etc, RCo, 53 Ark 250 Colorad O Beckwith v Talbot, 2 Colo604 Indiana Harris -v Tomlinson, 130 Ind 426; Marley v Hornaday, 69 Ind 106; Morgan v Hays, 91 Ind 132; Hannah v Dorrell, 73 Ind 465 Com- pare Firestone v Firestone, 78 Ind 535 Michiga N Runnels v Moffat, 73 Mich 188 Compare Dreyfus v Cage, 62 Mis S 606 New Jerse Y Lefferts v State, 49 N J L 26 Englan d Mersey Docks, etc, Board v Penhallow, 7 H N 431 3 Illinoi S Heinsen v Lamb, 117 111 549 4 Arkansa S McDonald v Wat- kins, 4 Ark 624 Illinoi S People v Anthony, 129 111 220; Myers v Antrim, 14 111 App 437; Dougherty v People, 118 111 160 Indiana Morgan v Hays, 91 Ind 132; Jenkins v Long, 23 Ind 460; Williams i. Henderson, 90 Ind 577; Makepeace v Lukens, 27 Ind 435; Uland v Carter, 34 Ind 344; Hamil- ton -v Burch, 28 Ind 233; Beavers v State, 58 Ind 530; Hannah v Dorrell, 73 Ind 465; Firestone v Firestone, 78 Ind 534 KentucKy M'Key v Moore, 4 Bibb (Ky) 321; Scroggin v Scroggin, i J J Marsh (Ky) 362 Missour I Baker v Kansas City, etc, RCo, 122 Mo 533; Hansbrough v Fudge, 80 Mo 308; Briant v Jack- son, 80 Mo 318 Notic e Notice of the application for the amendment must be duly served upon the adverse party to save any intervening right S 1 Xv FORM AND CONSTRUCTION 1 Form A SUBSTANTIAL COM- PLIANCE WITH STATUT e As a bill of exceptions is statutory it Oral Evidenc e The amendment can- not, therefore, be made on parol evi- dence alon e Seig v Long, 72 Ind 18; Kirby v Bowland, 69 Ind 290; Makepeace v Lukens, 27 Ind 435; Ellis v Ewbanks, 4 111 190; Hamil- ton v Burch, 28 Ind 233 What Sufficient Minut e An entry in the original bill is sufficient basis for the amendment of a cop Y Guerton v Mombleau, 144 111 32 Oral Evidenc e Parol evidence is admissible to aid in determining whether an amendment to the bill is proper or not; it must be aided by some minute, memorandum, or record to justify a nunc pro tune order of amendment. Kingfisher Bank v Smith'(Ok La, 1894), 35 Pac Rep 957 Entry of Allowanc e So a nunc pro tune entry of the allowance of a bill of exceptions may be made at a subse- quent term, unless there are memo- randa in the case showing the fact S Greene County v Wilhite, 35 Mo App 45; Cunningham v Wells, 16 Mo App 78; Churchill v Hill, 59 Ark 54 Actual Event S It can, however, only amend by actually incorporating in the bill something which has actu- ally occurre d Martin v St Louis, etc, RCo, 53 Ark 250 " It is not the office of an amendment to create or originate something new, but only to perfect that which is imperfectly don e" Martin v St Louis, etc, RCo, 53 Ark 250 Presumptio N It will be presumed, where the contrary does not affirma- tively appear, that the judge amended on sufficient evidenc e Gebbie v Mooney, 22 111 App 372 The Order Reviewabl e An order amending a bill of exceptions is ap- pealable like orders amending other record S Harris v Tomlinson, 130 Ind 426; Morgan v Hays, 91 Ind 132; Hamilton v Birch, 28 Ind 233; Williams v Henderson, 90 Ind 577; Seig v Long, 72 Ind 18; Uland v Carter, 34 Ind 344; Bales v Brown, 57 Ind 282; Douglass v Keehn, 78 Ind 199; Conway v Day, 79 Ind 318; Walker v State, 102 Ind 502 How Brought U P A proceeding to amend a bill of exceptions is, like any other nunc pro tune order, not a sepa- rate and distinct action, but merely auxiliary thereto, and should, where an appeal in the main action is pend- ing, be brought up on appeal as a part of that action, and not as an original cas e Harris v Tomlinson, 130 Ind 426, citing Hamilton v Burch, 28 Ind 233; Seig v Long, 72 Ind 18; Hannah v Dorrell, 73 Ind 465 In England it has been held that the appellate court cannot review the pro- priety of an amendment made by the trial judge after sealing, but that the proper course was to take out a sum- mons at chambers, or rescind the order made returnable to the judge who made it.

Autor of the post: Undefined

To that is added Post Date: Tue, 29 Jul 2008 3:49:13 +0000
Mersey Docks, etc, Board v Penhallow, 7 H N 431 1 People v Anthony, 129 111 220; Church v English, 81 111 442; Cook v Wood, 24 111 295; McCormick z/ Wheeler, 36 111 114; Wallahan v Peo- ple, 40 111 102; Goodrich v Minonk, 62 111 121 ; Myers v Antrim, 14 111 App 437; Devine v People, 100 111 290; Beckwith v Talbot, 2 Colo604; Knox v McFerran, 4 Colo349 Notice of the application to amend must be given after the close of the ter M See Longworth v Higham, 89 Ind 352; Jeffersonville, etc, RCo v Bowen, 49 Ind 154 Objection Waive d Where no objec- tion is made to the sufficiency of the notice in the trial court all objections are waive d Beckwith v Talbot, 2 Colo604 To Whom Give N Notice should be given to all who may be affected by the order of amendment. Devine v People, 100 111 290 Presumptio N But where it does not affirmatively appear that the bill was amended in vacation, or without no- tice, and no motion is made to strike it from the files, it will be presumed to have been legally amende d Myers v Phillips, 68 111 269 must substantially conform to the requirements of the statut e 1 It must be so framed and signed as to clearly show that it was in- tended as a bill of exception S 2 Captio N It should have a formal caption or beginning and endin g 3 1 California Haraszthy v Hor- ton, 46Cal546; Brown v Kentfield, 50Cal131 Indiana Gimbel v Smidth, 7 Ind 627 Nebraska McCarn v Cooley, 30 Neb 557; American Credit Foncier v Rogers, 8 Neb 34; State v Knapp, 8 Neb 436 New York Dean v Gridley, 10 Wen d ( N Y) 256 United State S Herbert v Butler, 97 U S 319 Signatur e Where not duly signed by the proper official it may be disre- garded by the appellate court of its own motio N Peace v Clements, 73 Ala 257; Southern Express Co v Black, 54 Ala 177 To Show Evidenc e Where the stat- ute (Code Iowa, 28, 32) provided that no stated form for the bill was required, a certificate of the judge to the transcribed evidence, that it is all the evidence offered and received, was, where filed in time, a sufficient bill of exceptions to show all the evidenc e McCarthy v Watrous, 69 Iowa 263; State v Fay, 43 Iowa 651; Gibbs v Buckingham, 48 Iowa 96; State v Newcomb, 56 Iowa 335; McFarland v Folsom, 61 Iowa 117; Wadsworth v Indianapolis First Nat Bank, 73 Iowa 425; Hahn v Miller, 60 Iowa 96; Fleming v Stearns, 79 Iowa 256; Hurlburt v Fyock, 73 Iowa 477 Judge's Certificat e A certificate of the judge filed with the clerk, and con- stituting part of the record under Code Iowa (section 4482), showed, from the rulings taken on the trial and excep- tions taken thereto, that such a cer- tificate constituted a bill of exceptions sufficient for that purpos e State v Fay, 43 Iowa 652; Hay v Frazier, 49 Iowa 454 So where a bill of exceptions signed by a judge, who delegated authority to a reporter to write out his notes, and to a clerk to admit them when written out, to be placed among the files and inserted in the record in the shape of skeleton notes, with a skeleton bill of exceptions, cannot be tolerate d Hay- ward v Catton, i 111 App 577 2 Weems v Weems, 69 Ala 105; Schlungger v State, 113 Ind 295 Instance of Invalid Bil L The follow- ing was held not to show that it was a bill of exceptions: On the trial of this cause the fol- lowing proceedings were had, fol- lowed by a motion for assignment for counsel and the assignment thereof; the entire proceedings in the cause be- ginning with summons and complaint and ending with the verdict and judg- ment. To that is added the following words, and only the following words: " And the defendant's attorneys now assign each and all said rulings of the court as error S (Signed) W M L Whitloc K" Held, that as it failed to express directly or by implication that it was intended as a bill of ex- ceptions, it could not be so regarde d Weems v Weems, 69 Ala 105 Entitling Bil L Where the bill of exceptions is properly certified up as appertaining to the cause, it is not es- sential to their validity that they should be entitled in any court or cas e Gordon v Parker, 2 Smed M (Mis S) 485 3 Jenkins v Wilson (Ind, 1895), 40 N E Rep 39; Johnson v State, 65 Ind 269; Bement v May, 135 Ind 664 A writing having no formal cap- tion or beginning, an d not stating that the appellant testified as a wit- ness on his own behalf upon the trial, nor that the questions objected to were put to him on his cross-examina- tion while so testifying, etc, was held, although signed by judge, a mere fragmentary bill of exceptions, and not vali d Johnson v State, 65 Ind 269 Compare Etter v Arm- strong, 46 Ind 197 And a longhand transcript of the evidence, not em- bodied in a proper bill of exceptions, Not an Entr Y The bill is a document filed in the cause, and not an entry in the minute S 1 Written statement S Nor will the mere written statement of the trial judge as to a trial proceeding be received as a substitute, although signed by hi M 2 b STATUTES REMEDIA L But the statutes providing for a bill of exceptions are remedial in their nature and will be liberally con- strued, 3 and where the instrument sent up in the record purports nor purporting to be such, and lack- ing a formal commencement, was held invalid, although having a proper con- clusion and signed by the trial judg e Jenkins v Wilson (Ind, 1895), 40 N e Rep 39 But where otherwise sufficient, the formal beginning and ending is not a requisite to the validity of the bil L Wilson v Giddings, 28 Ohio St 554; Zabriskie v Smith, n N Y 482 In a recent Indiana case, where the paper purporting to be a bill had neither a formal beginning nor formal ending, but was called by the judge in his certificate a " bill of longhand manuscript of all the evi- dence," and was termed a " bill of exceptions," also in the clerk's certifi- cate to the transcript, it was held re- ceivable as on e Chicago, etc, RCo v Wolcott (Ind, 1895), 39 N E Rep Signed Entr Y Consequently a signed entry in the minutes of the court is not a bill of exceptions, and cannot be read as suc H Haraszthy v Horton,46Cal546; Brown v Kent- field, 50Cal131; Hanna v Maas, 122 U S 26: Pomeroy v State Bank, i Wal L (U S) 592; Thompson v Riggs, 5 Wal L (U S) 663; Young v, Martin, 8 Wal L (U S) 354; Phcenix In S Co v Lanier, 95 U S 171; Lewis v May, 22 Iowa 599; 'Ferguson v Ferguson, 7 How Pr ( N Y Ct App) 217 But in the state of Tennessee it has been held that such minutes, where in- tended to operate as a bill, and properly authenticated by the trial judge, might be so deeme d Weakley v Pearce, 5 Heis K (Tenn) 415; Wynne v Ed- wards, 7 Humph (Tenn) 420 In California, an extract from the minutes of the clerk, signed by the judge in the due course of the proceed- ings of the court, had from day to day during the term, cannot be considered as a bill of exception S Haraszthy z/ Horton, 46Cal546 2 Owens v Missouri Pac RCo, 67 Tex 679; Schlungger z/ State, 113 Ind 295 By CONSENT In Gibbons v Ogden, 5 N J L 853, however, it was held that a statement made by the chief justice accompanying the bill of ex- ceptions, and signed by the parties as forming a part thereof, would be so considere d 3 Iowa Claggett v Gray, i Iowa 21 Mississipp I Vicksburg, etc, RCo v Ragsdale, 51 Mis S 453 Missour I Blankenship v North Missouri RCo, 48 Mo 377 Nebraska Morehead v Adams, 18 Neb 569; Edwards v Kearney, 13 Neb 502; McCarn v Cooley, 30 Neb 552; Richards v State, 22 Neb 145; Seward v Klenck, 30 Neb 775; Green- wood v Cobbey, 24 Neb 649 Nevad A State v Baker, 8 Nev 145; State -v Salge, i Nev 455 New York Zabriskie v Smith, n N Y 482 Ohio Wilson v Giddings, 28 Ohio St 554- Pennsylvania Thomas v Wright, 9 S R(Pa) 90; Stewart v Hunt- ingdon Bank, n S R(Pa) 267 South Dakota Hall -v Harris, 2 S Dak 331 Wyoming Stirling -v Wagner (Wyoming, 1892), 31 Pac Rep 1032 United State S Kleinschmidt v Mc- Andrew, 117 U S 282; Simpson v Dall, 3 Wal L (U S)46 g Time when Take N So a statement after the language of a charge [ex- ception taken] will raise the presump- tion that it was taken at the time the ruling was mad e " Court will not allow a party to be deprived of the benefits of his exceptions by any mere technical defect in the form of stating the exception S" Hall v Harris, 2 S Dak 331 to be a bill of exceptions and is authenticated as such, it will be so considered although technically defectiv e 1 2 Construction and Effect A AGAINST APPELLANT.

Autor of the post: Undefined

1 The same principle requires Post Date: Tue, 29 Jul 2008 3:36:04 +0000
A bill of exceptions is substantially a pleading of the exceptant before the appellate court ; a he is, therefore, responsible for all deficiencies therein ; 3 and where the bill is unintelligible, confused, or con- 1 Transcript. A stipulation, there- fore, that a transcript may be accepted as a bill of exceptions may authorize its signature as a bill of exceptions by the trial judge, but cannot authorize the transcript to be so considered with- out such signatur e McCarn v Cooley, 30 Neb 552 Construction of General Statute S On the other hand, it is held in Alabama that statutory requirements affecting bills of exceptions are, like all statutes affecting the technical process of tak- ing and perfecting an appeal, strictly construed, and their provisions must be fully complied with or the bill is in- validate d Floyd v Fountain, 17 Ala 700; Godden v, Le Grand, 28 Ala 158; Moore v Appleton, 34 Ala 147 So an entire transcript made out in the form of a bill of exceptions, and setting out, besides pleadings, etc, charges, evidence, etc, cannot be deemed a bill of exceptions for any purpos e Efurd v Loeb, 82 Ala 429; Weems v Weem S 69 Ala 104 Statement on Motion for New Tria L A statement filed in aid of a mo- tion for a new trial, containing all the exceptions taken and allowed on the trial, together with all the evidence relating to the same, will be considered as a bill of exceptions where settled and allowed in apt time by the trial judg e Alexander v U S, 57 Fed Rep 828 2 Garrity v Hamburger Co, 136 111 499; Thompson v Seipp, 44 111 App 515; Alley v Limbert, 35 111 App 592 It will not be deemed, therefore, the writing of the trial judg e Garrity v Hamburger Co, 136 111 499 Admission S As a bill of exceptions is presumed to have been prepared by the exceptant or his attorney, facts stated therein as having occurred on the trial are his admissions that they did occuRSmith v Lisher,23 Indso O Effect in Equit Y Where, in a suit in equity heard on pleadings and proof, the judge allowed a bill of exceptions to the entry of decrees and proceed- ings thereto relating, and ordered it to be filed as part of the record, it was held to have the same effect as if the narrations it contained of what had occurred were incorporated in the body of the decre e Ensminger v Power S 108 U S 301 As Evidenc e It is conclusive evi- dence between the parties, but in the particular suit only, as to the facts stated therei N Law v Merrills, 6 Wen d ( N Y) 276; Shotwell v Ham- blin, 23 Mis S 156; Bingham v Cabbot, 3 Dal L (U S)38 Subsequent Tria L But it is not com- petent evidence, on a subsequent trial, to prove what the testimony of the witnesses was on the trial in which the bill of exceptions was take N Kirk v Moury, 24 Ohio St 587 Where no Jurisdiction of Subject-matTer Where the trial court entertains a suit of whose subject-matter it has no jurisdiction, a bill of exceptions on appeal from a decision therein will not be dismissed, but judgment will be reverse d Pope v Jones, 79 Ga 488 ; Walker v Banks, 65 Ga 20 ; Worsham v Murchison, 66 Ga 715; Castleberry v State, 68 Ga 49 ; Memmler v Roberts, 81 Ga 351 See article APPEALS, Appealable Judgments and Orders, Vo L I I, p 52 Where it refuses to act in such a case the bill will be dismissed on ap- pea L Pope v Jones, 79 Ga 488; Wheeler v Walker, 55 Ga 256; Stan- ton v Speer, 69 Ga 771; Tison v My- rick, 60 Ga 123 ; Middlebrooks v Middlebrooks, 57 Ga 193 In Mississippi, however, it is held that where the decision of a trial court is absolutely void, because the case in which it is made is beyond its jurisdiction, the bill of exceptions taken therein is void al So Bowers v Ross, 55 Mis S 213 Florida Willingham v State, 21 Fla 76i;Gallaher v State, 17 Fla 370; Newton v State, 21 Fla 53; Potsdamer v State, 17 Fla 895; Jones v Town- send, 21 Fla 431 3 Illinoi S Neufeld v Rodominski flicting, it will be interpreted against the appellant and in support of the judgment. 1 The same principle requires alleged errors to be disregarded where not clearly show N 2 41 111 App 144; Rogers v Hall, 4 111 5; Alley v Limbert, 35 111 App 592 Indiana Stout v Woods, 79 Ind 109 1 Alabama McReynolds v Jones, 30 Ala 101 ; Dozier v Joyce, 8 Port (Ala) 303; Donnell v Jones, 17 Ala 689; Patton v Hayter, 15 Ala 18 Georgia Franklin v Madden, 77 Ga 487 Illinoi S Spahn v People, 137 111 546; Brown v Griffin, 40 111 App 559; Alley v Limbert, 35 111 App 593; Garrity v Hamburger Co, 136 111 513; Monroe v Snow, 33 111 App 232 Indiana Stout v Woods, 79 Ind 109; Johnson v Wiley, 74 Ind 233; Wells v Wells, 71 Ind 509 Louisiana State v Johnson, 36 La An N 852 New York Price v Powell, 3 N Y 322 Ohio Hollister v Reznor, 9 Ohio St I Texa S Walker v State, 19 Tex App 176; Stephens v Bowerman, 27 Tex 18; Litton v Thompson, 2 Tex Un Rep Ca S 580; Rains v Hood, 23 Tex 555 Ver Mont Adams v Ellis, i Ai K ( Vt) 24; French v Ware, 65 Vt 338; Cram v Cram, 33 Vt 15 Disordered Bil L So where the bill is made up of portions of the evidence, and these are set forth in detached and scattered parcels, every doubt will be resolved against the appellant.

Autor of the post: Undefined

1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14 | 15 | 16 | 17 | 18 | 19 | 20 | 21 | 22 | 23 | 24 | 25 | 26 | 27 | 28 | 29 | 30 | 31 | 32 | 33 | 34 | 35 | 36 | 37 | 38 | 39 | 40 | 41 | 42 | 43 | 44 | 45 | 46 | 47 | 48 | 49 | 50 | 51 | 52 | 53 | 54 | 55 | 56 | 57 | 58 | 59 | 60 | 61 | 62 | 63 | 64 | 65 | 66 | 67 | 68 | 69 | 70 | 71 | 72 | 73 | 74 | 75 | 76 | 77 | 78 | 79 | 80 | 81 | 82 | 83 | 84 | 85 | 86 | 87 | 88 | 89 | 90 | 91 | 92 | 93 | 94 | 95 | 96 | 97 | 98 | 99 | 100 | 101 | 102 | 103 | 104 | 105 | 106 | 107 | 108 | 109 | 110 | 111 | 112 | 113 | 114 | 115 | 116 | 117 | 118 | 119 | 120 | 121 | 122 | 123 | 124 | 125 | 126 | 127 | 128 | 129 | 130 | 131 | 132 | 133 | 134 | 135 | 136 | 137 | 138 | 139 | 140 | 141 | 142 | 143 | 144 | 145 | 146 | 147 | 148 | 149 | 150 | 151 | 152 | 153 | 154 | 155 | 156 | 157 | 158 | 159 | 160 | 161 | 162 | 163 | 164 | 165 | 166 | 167 | 168 | 169 | 170 | 171 | 172 | 173 | 174 | 175 | 176 | 177 | 178 | 179 | 180 | 181 | 182 | 183 | 184 | 185 | 186 | 187 | 188 | 189 | 190 | 191 | 192 | 193 | 194 | 195 | 196 | 197 | 198 | 199 | 200 | 201 | 202 | 203 | 204 | 205 | 206 | 207 | 208 | 209 | 210 | 211 | 212 | 213 | 214 | 215 | 216 | 217 | 218 | 219 | 220 | 221 | 222 | 223 | 224 | 225 | 226 | 227 | 228 | 229 | 230 | 231 | 232 | 233 | 234 | 235 | 236 | 237 | 238 | 239 | 240 | 241 | 242 | 243 | 244 | 245 | 246 | 247 | 248 | 249 | 250 | 251 | 252 | 253 | 254 | 255 | 256 | 257 | 258 | 259 | 260 | 261 | 262 | 263 | 264 | 265 | 266 | 267 | 268

mail to: pirton@mail.ru