Laws

Atchison, etc, RCo v Wagner Post Date: Tue, 29 Jul 2008 20:44:52 +0000
Lowery v Carver, 104 Ind 447- Insufficient Referenc e Where a stat- ute requires that the place of the in- sertion of the documentary evidence should be noted in the bill of excep- tions by the words "here insert," a bill of exceptions, merely stating that a certain " mortgage (E X A) was read in evidence," was insufficient to make the mortgage part of the bill, although it was copied in the recor d Sanders v Farrell, 83 Ind 28 A statement in the bill that " the de- fendant then gave in evidence the facts set forth in tTie second paragraph of his answer herein (which paragraph has been heretofore set out in said answer), this was all the evidence given in the case" held, not suffi- cient, as the evidence itself must be include d Adkins v Hudson, n Ind 372 1 Stratton v Kennard, 74 Ind 304; Stewart v Rankin, 39 Ind 161; Cluck v State, 40 Ind 263 2 Pitkin v Shacklett, 106 Mo 574 3 Pitkin v Shacklett, 106 Mo 574; Crawford v Spencer, 92 Mo 498 4 Missour I Pitkin v Shack- lett, 106 Mo 574; State v Van Zant, 71 Mo 541; Crawford v Spencer, 92 Mo 498; State v Wear, roi Mo 414; Tipton v Rennet, d IDENTIFICATION REQUIRE d Thedocuments so incorporated must be so clearly referred to and marked in the record as to be iden- tified beyond reasonable doubt. 1 As to what constitutes a suffi- 105 Mo i; Myers v Myers, 98 Mo 262; Roberts v Bartlett, 26 Mo App 611; McNeil v Home In S Co, 30 Mo App 307; Morrison v Lehew, 17 Mo App 633 Indiana Henry v Thomas, 118 Ind 23; Kesler v Myers, 41 Ind 543; Colee v State, 75 Ind 511; McFadden v Wilson, 96 Ind 253; Stewart v Rankin, 39 Ind 161; Smith v Lisher, 23 Ind 500; Endsley v State, 76 Ind 467; Sanders v Farrell, 83 Ind 28; Sidener v Davis, 69 Ind 336 Exampl e So where a skeleton bill of exceptions recited that there were offered in evidence " a tax deed which was in words and figuring following [here clerk copy tax deed], and also the following tax receipts, which are in words and figures following [here clerk copy tax receipts]," and in pre- paring the record the clerk copied into the places indicated a tax deed and tax receipts which corresponded to descriptions of a tax deed and re- ceipts contained in a reply held, suffi- ciently identified to become part of the bil L Pitkin v Shacklett, 106 Mo 572- Iowa In Iowa a skeleton bill of ex- ceptions may be made by framing a formal bill, leaving blanks for docu- ments and the reporter's notes of evi- dence, and directing their insertion S Where the original notes are made part of the record by a bill of excep- tions, the record is in substance com- plete so far as the evidence embraced therein is concerne d If a transcript or extension of the notes is required to make out the abstract, it is not re- quired to complete the record, and the appellee may even set out the evi- dence in the abstract from his own notes or memory, and it will be suffi- cient unless the appellee objects, when a reference may be made to the bil L Hampton v Moorhead, 62 Iowa 95 1 Alabama Looney -v Bush, Minor (Ala) 413; Tuskaloosa County v Logan, 50 Ala 503; Decatur Branch Bank v Moseley, 19 Ala 222; Bradley v Andress, 30 Ala 80; Strawbridge v State, 48 Ala 310; Stodder v Grant, 28 Ala 416; Quigley v Campbell, 12 Ala 58; Pearce v Clements, 73 Ala 257- Arkansa S Keith v Herschberg Optical Co, 48 Ark 138; Sprott v New Orleans In S Asso C, 53 Ark 215; Lesser v Banks, 46 Ark 482; Carroll v Bowler, 40 Ark 168; St Louis, etc, RCo v Godby, 45 Ark 485; Johnson v Terry, 35 Ark 220; Stirman v Cravens, 29 Ark 548; Sexton v Brock, 15 Ark 346; Dillard v Parker, 25 Ark 503; Woolfolk v Wright, 28 Ark I California Canfield v Thompson, 49Cal210 Illinoi S Hatch v Potter, 7 111 725- Iowa Harmon v Chandler, 3 Iowa 150; Claggett v Gray, i Iowa 19; Mays v Deaver, i Iowa 221; Sands v, Wood, i Iowa 263; McCrarey v Cran- dall, i Iowa 117; State v Bryan, 4 Iowa 349; Reed -v Hubbard, i Greene (Iowa) 153; Smith v Taylor, n Iowa 214; Hill v Holloway, 52 Iowa 678; Wells -v Burlington, etc, RCo, 56 Iowa 520; Baltzell z Noster, i Iowa 591; Humphry v Burge, i Greene (Iowa) 223; Freher v Geeseka, 5 Iowa 472; Pierce v Locke, n Iowa 454; Moffit v Rogers, 15 Iowa 453; Van Orman v Spafford, 16 Iowa 186; Burlington Gas Light Co v Green, 21 Iowa 337; Bell v Rowland, 9 Iowa 282; Lyons v Thompson, 16 Iowa 62 Kansa S Atchison, etc, RCo v Wagner, 19 Ka N 335 Michiga N Wagar v Peak, 22 Mich 368 Mississipp I Preston v State, 25 Mis S 383; Berry v Hale, i How (Mis S) 315; Carmichael v Browder, 4 How (Mis S) 431; Pickett v Doe, 5 Smed M (Mis S) 470; Wadlington v Gary, 7 Smed M (Mis S) 522; Wright v Alabama Bank, 6 Smed M (Mis S) 251; Maulding v Rigby, 4 How (Mis S) 222; Oliver v State, 5 Ho W (Mis S) 14; Rankin v Holloway, 3 Smed M (Mis S) 614 Missour I Morrison v Lehew, 17 Mo App 633: Ober v Indianapolis, etc, RCo, 13 Mo App 81; Myers v Myers, 98 Mo 271 Ohio Hicks v Person, 19 Ohio 446; Wells v Martin, i Ohio St 388; Busby v Finn, i Ohio St 409; Young v State, 23 Ohio St 578; Dunn v cient identification the cases are not entirely harmoniou S Ordi- narily, the bill in referring to the document must propose to in- state, 23 Ohio St 167; Tanner v Brown, 2 AmeR L Re C (Ohio) 614 Wisconsi N Oliver v Town, 24 Wi S 514; Sexton v Willard, 27 Wi S United State S Leftwich v Lecanu, 4 Wal L (U S) 187 Must be Obvious on Inspectio N The means of identification must be obvi- ous to all upon inspectio N A memo- randum known only to the clerk is in- sufficient. Atchison, etc, RCo v Wagner, 19 Ka N 340; King v Martin, 67 Ala 177 In the instructive case of Atchison, etc, RCo v Wagner, 19 Ka N 335, it is said: " It [the record] must show upon its face all that it is; it must be its own evidence of all that it con- tain S No part of its contents may rest upon the discretion of the clerk, the recollection of the judge, or the testimony of counse L But to insure this certainty is it essential that every- thing be written out in full, every document and writing copied into the bill before signature ? Such appears to be the import of some of the author- ities cited; but that seems to us un- necessary stringency, and to impose needless clerical laboRWhere a dep- osition or other writing is to be made a part of a bill, it can be referred to with such marks of identification as to exclude all doubt.

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Specific instances of Post Date: Tue, 29 Jul 2008 20:30:06 +0000
* * * But these things must exist to exclude all doubt: iSt The bill in referring to such ex- trinsic document must purport to in- corporate it into and make it a part of the bil L A mere reference to the document, although such as to identify it beyond doubt, or a statement that it was in evidence, is not sufficient, for such reference and statement do not make it certain that judge or counsel intended that it should be copied into and made a part of the bil L 2 d The document itself must be in existence, written out, and complete at the time of the signature of the bill; otherwise the door is open for dispute as to its language, and the bill may not in fact be allowed by the judge within the statutory ti Me A reference to the testimony of some wit- ness, to be thereafter written out by him, and as written out to be in- serted, is improper; and such testi- mony, though written out and inserted, must be disregarded, for that in effect places in the bill the witness's state- ments of the testimony, and not the judge' S So also if a document has been totally or partially destroyed, it must be restored before the signa- ture, and the paper as restored clearly identifie d Andagain: Supposeapaper in a foreign language is received in evidence and translated to the jury by some witness on the stan d It will not do to refer to that paper in the original, leaving the translation to be thereafter written out by any one, not even the witness who translated it to the jury; but the translation must be written out and properly referred to, so that the judge may approve it as the one given on the tria L The same principle renders it proper that short- hand notes be written out before the signature; for the notes of the stenog- rapher are not a record; they are not conclusive as to what in fact was the testimony; they are not good against the certificate of the judge, and are no substitute for it." So in Leftwich v Lecanu, 4 Wal L (U S) 187, it was said : " If a paper which is to constitute a part of A bill of exceptions is not incorporated into the body of the bill it must be an- nexed to it, or so marked by letter, number, or other means of identifica- tion mentioned in the bill as to leave no doubt, when found in the record, that it is the one referred to in the bil L" In Hicks v Person, 19 Ohio 446, it was said : " It will not do, as is sometimes attempted to be done, to refer to the records of courts, or records of deeds, and attempt to make them parts of bills of exception S It will not do to refer to depositions on file, by the names of the defendants, or by artificial marks upon the depo- sitions themselves, without something beyond thi S They must be attached to or made part of the bill of exceptions, so that when a record of the case shall be made, they can be introduced into that record as constituting a part of the cas e" Approved, Wells v Mar- tin, i Ohio St 389 So in Harmon v Chandler, 3 Iowa 152, it was said, " To refer to a mo- corporate it and make it part of the bill; a mere reference has been said not to be sufficient. Specific instances of what the courts have held to be sufficient identification are given in the note S 1 tion or instruction as ' marked A' and '[here insert it]' is not sufficiently certain for the ends of justic e" Evidenc e Thus the evidence to be incorporated by reference should be so identified by the trial judge that a mistake in reference thereto by the clerk can be readily correcte d Tootle v Phcenix In S Co, 62 Iowa 362; Hill v Holloway, 52 Iowa 678; Wilson v Tenant, 61 Iowa 194; Lockard v Chicago, etc, RCo, 66 Iowa 250; Williams v Williams, 69 Iowa 715; Parks v Council Bluffs In S Co, 70 Iowa 655 Presumptio N When a paper offered in evidence is referred to in a bill of exceptions by a particular name or description, the legal presumption is that the whole paper is intended to be presented to the court of law, and not so much of it only as may best con- form with the description of it.

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But where no objection Post Date: Tue, 29 Jul 2008 20:15:41 +0000
Moore v Bond, 18 Me 142 Instruction S Where a skeleton bill recites that the court gave certain in- structions on its own motion, and di- rects the clerk to insert them, and certain instructions are inserted, it will be presumed that the clerk did his duty and inserted all the instruc- tions so give N King v Barber, 61 Iowa 674 WaiveRDocumentary evidence made part of the bill of exceptions or reserved case by reference is neces- sarily regarded as waived when not sent up with the printed cas e Lob- dell v Marshall, 58 N H 342; Tabor *. Judd, 62 N H 288 Intermediate Appellate Court. But where no objection is made in an intermediate appellate court to the documents as referred to, none can be made on further appeal in a higher tribuna L Cooch v Irwin, 7 Ohio St Georgia In Georgia it is held that where a brief of the evidence was ap- proved and filed with the motion for a new trial, and was sent up to the Su- preme Court as a part of the record duly certified and referred to in the bill of exceptions, this was sufficient with- out attaching it theret O Searcy v Tillman, 75 Ga 504 The reference is essential to validate it.

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Dillard v Parker, 25 Post Date: Tue, 29 Jul 2008 20:01:35 +0000
Ruffin v Paris, 75 Ga 653; Myers v Way, 63 Ga 145; Smith v Bryan, 64 Ga 366; McArthur v De Vaughn, 67 Ga 647 Unless the parties agree that it may be considere d Baker v Nicholls, 71 Ga 866; McMillan v Davis, 71 Ga 866 Since the Act of September 28, 1881 (Pa M p 53), where the bill of ex- ceptions fails to refer to the record containing the evidence, it may be amended by adding the necessary referenc e Kelly v McGehee, 67 Ga 364- And it was held, under the Act of November, 1889, providing for bring- ing cases to the Supreme Court, where the bill of exceptions, based on the refusal of the court to grant a new trial, specifies as part of the record material to an understanding of the errors complained of " a statement of the oral evidence " of certain named witnesses, this specification will be construed as referring to the evidence of these witnesses as contained in a regular brief of evidence, although the brief be not expressly mentioned, the judge's certificate to the bill of excep- tions being in the prescribed for M Brittain v Griggs, 88 Ga 232 Withdrawa L Where documentary evidence attached to the bill is not so identified, the appellate court will not allow the exceptant to withdraw it to secure identificatio N Hawes v Hawes, 66 Ga 142 1 Sufficient Identificatio N In Arkan- sas a bill of exceptions containing the request "(clerk will here copy plain- tiff's instructions as asked, leaving off the amendments of the court)," and the transcript on appeal con- taining a prayer for charge as pre- sented by plaintiff, indorsed " Instruc- tions for plaintiff," divided into para- graphs and amended as recited in the bill of exceptions, were held suffi- ciently identifie d Sprott v New Or- leans In S Asso C, 53 Ark 215 Instructions numbered and indorsed "Instructions for plaintiff," and left in custody of the clerk, are sufficiently identified by a direction in a skeleton bill of exceptions for the clerk to copy " plaintiff's instructio N" Sprott v New Orleans In S Asso C, 53 Ark 215 e THE RECOR d The documents referred to in the bill of ex- ceptions must be actually incorporated in the record proper by the clerk at full lengt H Merely attaching them as exhibits to the bill is not usually sufficient ; * nor is it sufficient for the clerk to incorporate a summary only ; a he should copy the documents so directed to be included in the record in their proper ordeR3 In Indiana the rule does not apply to documen- plaintiff filed his certain motion, with affidavits attached," it was held insuf- ficient to identif Y Moffit v Rogers, 15 Iowa 454; Wooster v Chicago, etc, RCo, 74 Iowa 593 Where the clerk of the trial court leaves blank spaces in the bill of ex- ceptions, and refers to the judgment, deed, or other document properly in- sertable therein only by a description of parties, such papers cannot be re- garded, without further identification or reference, as parts of the bill, although they are apparently copied into the record propeRPearce v Clements, 73 Ala 258 Mere Directio N And a mere direc- tion in a skeleton bill to the clerk to insert "plaintiff's evidence" and "defendant's evidence" was held wholly insufficient. Tootle v Phoenix In S Co, 62 Iowa 362 Deposition S So where the bill re- cited that the oral testimony set forth with the depositions marked as ex- hibits was all the evidence offered, and the depositions attached were in no manner, either by the certificate of the clerk or the judge, or by any exhibit marks, identified as the depositions read in evidence on said trial held, insufficient to identify the M Pierce v Locke, n Iowa 454; Mumma v McKee, 10 Iowa 107 1 Dillard v Parker, 25 Ark 503; Moffit v Rogers, 15 Iowa 453: Frace v Omaha First Nat Bank, 3 Wyoming 187 A Mere Description of documentary evidence in the transcript is insuffi- cient. Dillard v Parker, 25 Ark 503 2 Dillard v Parker, 25 Ark 503 In Burdick v Hunt, 43 Ind 381, it was held that parties cannot by agree- ment in writing authorize the clerk, in making up a transcript for the Su- preme Court, to annex to the record documents used in the evidence with- out copying them into the record and having them authenticated as other evidenc e 3 Miles v Buchanan, 36 Ind 490; Harman v State, 22 Ind 331 So where a bill of exceptions stated that the plaintiff read in evidence to the 'jury certain depositions, nam- ing each one, " which depositions are here now among the papers of this cause, marked ' filed March 22d, 1852; g RRoyal, clerk; exhibit A,' and are ordered to remain on file herein, and to form and constitute a part thereof as fully in every re- spect as if herein literally copied," and then followed a package of depo- sitions corresponding in every re- spect with such reference, except that it nowhere appeared to be marked " exhibit A," held, sufficiently iden- tifie d Sexton v Brock, 15 Ark, 348 And where the skeleton bill of excep- tions referred to the reporter's short- hand notes and directed their inser- tion, it was held a sufficient reference, as the clerk was unmistakably directed as to what he should includ e Glenn i.

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Semmus v Walters, 55 Wi Post Date: Tue, 29 Jul 2008 19:48:05 +0000
Gleason, 61 Iowa 28; McCarthy v Watrous, 69 Iowa 260; Hampton v Moorhead, 62 Iowa 91; Gardner v Burlington, etc, RCo, 68 Iowa 588; Hunter v Burlington, etc, RCo, 76 Iowa 490; Wilson v First Presbyterian Church, 60 Iowa 112; Manson v Ware, 63 Iowa 345 But not unless a transcription thereof was made which the appellate court can understan d Warbasse v Card, 74 Iowa 306 Where the shorthand notes are properly a part of the record by stat- ute, upon proper filing with the clerk, they need not be again attached to the bill where identified and referred to therei N Waller v Waller, 76 Iowa Where a pleading or written instru- ment is a part of the record by force of the statute, and has been once copied into the transcript and is referred to in the bill of exceptions, the clerk need not again set it out in full, but may refer to the page and line of the transcript where it may be foun d White County v Karp, 90 Ind 236 Insufficient identificatio N Where the bill merely stated that "thereupon tary matters or written evidence not properly included in the record proper without such referenc e 1 / STENOGRAPHIC BILL (i) Generall Y Where official court stenographers are appointed bylaw to take down the proceedings on the trial, the bill of exceptions is still indispensable to bring their reports up, although the statute expressly declares that they shall be " the best authority in any matter of disput e" 2 (2) Incorporation of Reporter s Note S Where the judge orders the stenographic notes of the court reporter to be filed, 3 or em- bodies them in longhand in the bill, he adopts them as his own, 4 and where properly attested they become a bill of exception S 5 1 Colee v State, 75 Ind 513; Black U Daggy, 13 Ind 383; Miles v Bu- chanan, 36 Ind 490; Stewart v Ran- kin, 39 Ind 161; Smith v Lisher, 23 Ind 500; Douglass v State, 72 Ind 385; Kesler v Myers, 41 Ind 543; Blizzard v Riley, 83 Ind 302; Aurora f In S Co v Johnson, 46 Ind 315; Crumley v Hickman, 92 Ind 389; Carver v Carver, 44 Ind 265; Kimball v Loomis, 62 Ind 201; White County v Karp, 90 Ind 236; Ohio, etc, RCo v McDaneld, 5 Ind App 108 Papers not Part of Recor d An in- strument which is no part of the rec- ord, unless made so by a bill of excep- tions, must be found in the bill itself, or else it will not be regarded by the Supreme Court. White County v Karp, 90 Ind 236; Kesler v Myers, 41 Ind 543; Baker v Arctic Ditchers, 54 Ind 310 In some cases, however, it is held that papers attached to the bill of ex- ceptions as exhibits will be deemed a part thereof, where sufficiently re- ferred to and identifie d Rosenthal v Wehe, 58 Wi S 623; Leftwitch v Le- canu, 4 Wal L (U S) 187; Harman v Stange, 62 Ga 167; Carey v Giles, 10 Ga i; Fielder v Collier, 13 Ga Authenticatio N They must be au- thenticated by the signature of the trial judg e Hightower v Flanders, 69 Ga 772; Hodges v Roberts, 79 Ga 212; Carrie v Cummings, 26 Ga 690 Otherwise they will not be considere d Williams v Daly, 33 111 454; Harris v Brain, 33 111 App 510; Hursen v Lehman, 35 111 App 489; Chicago, etc, RCo v Harper, 128 111 384; Decatur Branch Bank v Moseley, 19 Ala 222; Harrell v Seal, 121 Ind 193; Kesler v Myers, 41 Ind 543; Stratton v Kennard, 74 Ind 302; Stewart v Rankin, 39 Ind 161; Ir- win v Smith, 72 Ind 482; Shugart v Miles, 125 Ind 445; Brehm v State, 90 Ind 140; Marshall v State, 107 Ind 175; Cincinnati, etc, RCo v Clif- ford, 113 Ind 460; Baltimore, etc, RCo v Barnum, 79 Ind 261; Sidener v Davis, 69 Ind 336; Burdick v Hunt, 43 Ind 381; State v Hemrick, 62 Iowa 414 As where separate sheets of docu- mentary evidence referred to in the body of the bill as exhibits a, b, c , etc, are attached after the judge's signature, but unauthenticated held , no part of the bil L Williams v Daly, 33 111 App 454 Addend A Where the court signs the bill of exceptions as follows: " The court signs the foregoing bill of exceptions, with the following adden- da," all matters in the addenda which are proper for insertion in a bill of ex- ceptions will be deemed a part there- of Louisville, etc, RCo -v Barker, 96 Ala 435 2 Connell v O'Neil, 154 Pa St 587; Rosenthal v Ehrlicher, 154 Pa St 396; Co M v Arnold, 161 Pa St 320; State v Larkin, u Nev 315; Ray- mond v Thexton, 7 Mont 299; Sher- man v Higgins, 7 Mont 479; Fant v Tandy, 7 Mont 443 Certificate Alone Invali d The long- hand transcript, or such part thereof as is necessary, must be actually em- braced in a properly prepared bil L A mere certificate of the judge to the re- porter's notes sent up outside the bill is insufficient. Semmus v Walters, 55 Wi S 682 3 Connell v O'Neil, 154 Pa St 587 4 Stagg v Compton, 81 Ind 171; McCormick Harvesting Mac H Co v Gray, 114 Ind 340; Davis v Liberty Gravel Road Co, 84 Ind 36; Dennis v State, 103 Ind 142; Indiana, etc, RCo v Quick, 109 Ind 295 5 Connell v O'Neil, 154 Pa St 587.

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Hammond v Wolf, 78 Iowa Post Date: Tue, 29 Jul 2008 19:28:47 +0000
Delegatio N The judge cannot dele- Certificatio N The certificate of the stenographer to the accuracy of the long-hand manuscript is not enoug H 1 The trial judge must indicate his approval of its correctness by authentication under his own han d 2 gate this power of authentication to the stenographer; nor is a statute so transferring it constitutiona L Connell v O'Neil , 154 Pa St 587 Iowa In Iowa it is held that the provision of the code ( 3777) provid- ing that the original notes of any tes- timony taken in anycause shall, when filed in the office of the clerk, become part of the record and admissible as evidence in any case where material, does not dispense with a bill of excep- tion S McCarthy v Watrous, 69 Iowa 263; McAnnulty z/ Seick, 59 Iowa 586; Lowe v Lowe, 40 Iowa 220; State v Hessian, 58 Iowa 68 A mere reference thereto in the bill is not sufficient to make the short- hand notes or longhand transcription of them a part of the record unless they are file d Lowe v Lowe, 40 Iowa They must also be duly certified by the reporter himself or by the clerk in whose office they are deposite d The judge's certificate .is not enoug H Richards v Lounesbury, 65 Iowa 587; Harrison v Snair, 76 Iowa 558; Lowe v Lowe, 40 Iowa 220; Arts v Culbert- son, 73 Iowa 14; McCarthy v Watrous, 69 Iowa 260; Merrill v Bowe, 69 Iowa 654; Wadsworth v Indianapolis First Nat Bank, 73 Iowa 425; Gibbs v Buck- ingham, 48 Iowa 98 Where the notes of evidence are incorporated in the bill by reference, they should be filed before the clerk is required to prepare a transcript on appea L Hammond v Wolf, 78 Iowa 229; Norbasse v Card, 74 Iowa 309 Otherwise they must be filed and certified within six months from the rendition of the judgment. Hammond v Wolf, 78 Iowa 229; Richards v Lounesbury, 65 Iowa 587; Merrill v Bowe, 69 Iowa 654; Kavalier v Ma- chula, 77 Iowa 121 Compare Wads- worth v Indianapolis First Nat Bank, 73 Iowa 425 1 Indiana McCormick Harvesting Machine Co v Gray, 114 Ind 340 Compare Butler University v Scoon- over, 114 Ind 384; L'Hommedieu v Cincinnati, etc, RCo, 120 Ind 435; State v Bercaw, 132 Ind 260; Clark v State, 125 Ind i; Fiscus v Turner, 125 Ind 47 Iowa Ferris v Anderson, 72 Iowa 420 Pennsylvania Co M v Arnold, 161 Pa St 320; Connell v O'Neil, 154 Pa St 587- In Connell v O'Neil, 154 Pa St 586, it was said as to the stenographer: " He can neither note an exception without the judge's direction, nor does his filing of his notes make them part of the recor d That can only be done by the order of the judge for that pur- taken by the party, must be allowed by the judge, must be noted by the stenographer at his direction, and must appear on the bill, just as it did under the previous practic e" It is not a ground of objection to the bill that the stenographer was not regularly appointed by the judg e Etter v O'Neil, 83 Iowa 655 Or that the reporter was not swor N Williams v Pendleton, etc, Turnpike Co, 76 Ind 87; Lord v Bishop, 101 Ind 334 Inclusivenes S And of course the stenographer has no authority except by statute to certify to its inclusive- nes S The judge alone can authenti- cate the longhand manuscript as con- taining all the evidenc e Lyon v Davis, in Ind 384; Marshall v State, 107 Ind 173 ; Wagoner v Wilson, 108 Ind 210; Stout v Stout, 77 Ind 537; Co M v Arnold, 161 Pa St 320, in effect overruling Chase v Vander- grift, 88 Pa St 217 ; Connell v O'Neil, 154 Pa St 587; Rosenthal v Ehrlicher, 154 Pa St 396 2 Indiana Weir Plow Co v Walmsley, no Ind 242; Fahlor z/State, io8Ind 387; Lowery z Carver, 104 Ind 447; Marshall v State, 107 Ind 173; Wagoner v Wilson, 108 Ind 210; Gal- vin v State, 56 Ind 51; Woollen v Wishmier, 70 Ind 108; Brehm v State, 90 Ind 142; Irwin v Smith, 72 Ind 482; Williams v Pendleton, etc, Turnpike Co, 76 Ind 89; Stout v Stout, 77 Ind 537; Davis v Liberty, etc, Gravel Road Co, 84 Ind 36; Hill v Hagaman, 84 Ind 287 The Longhand Manuscript.

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A mere reference Post Date: Tue, 29 Jul 2008 19:08:49 +0000
Where the entire evidence in its original form is essential to a review of the questions raised, the formal beginning and ending of a bill of exceptions may be tacked on to the reporter's longhand transcript of his steno- graphic notes, and the whole attested as a bil L 1 Otherwise this Iowa Everling v Holcomb, 74 Iowa 722 Mississipp I Saucier v Amari, 63 Mis S 279 In Co M v Arnold, 161 Pa St 320, it was said: " We are not disposed to stand on mere form S That the record is true and the judge so declares, is the substance, the form is not very materia L He may do so declare by formal bills with his seal, or he may adopt the notes of the stenographer as verity, and so declare by his certifi- cate at the end of the stenographic report, certifying to its correctness as a whol e If he chooses to multiply his certificates by affixing one with his seal appended to every exception to the admission or rejection of evidence, that certainly will not affect the verity of the recor d But the distinct assent of the judicial mind to the truth of that part of the record made up by the stenog- rapher must appear of record, by the certificate of the judge under his own han d He may make as many certifi- cates as he pleases, but he must make at least one which discloses his belief that the stenographic notes are verity, and that he so declare S" When Incorporate d The reporter's longhand manuscripts must therefore beincorporatedin the bill before its sig- nature by the judg e Stevens^. Stevens, 127 Ind 560; Walter v Uhl, 3 Ind App 219; Pennsylvania Co v Brush, 130 Ind 347; Fiscus v Turner, 125 Ind 46; Doyal v Landes, 119 Ind 479; Butler 'v Roberts, 118 Ind 481; Dick v Mullins, 128 Ind 365; Morningstar v Musser, 129 Ind 470; Harrell v Seal, 121 Ind 193; Patterson z/Church- man, 122 Ind 389; Kesler v Myers, 41 Ind 543; Irwin v Smith, 7 2 Ind 482: Stewart v Rankin, 39 Ind 161; Colt v McConnell, 116 Ind 249; Stone v Brown, n6Ind 78; Clark v State, 125 Ind i; Lowery v Carver, 104 Ind 447; Flint v Burnell, 116 Ind 481; Ohio, etc, RCo v Voight, 122 Ind 288; Weir Plow Co v Walmsley, no Ind 243: Brehm v State, 90 Ind 140; Fahlor v State, 108 Ind 387; Butler v Roberts, 118 Ind 481; Marshall v State, 107 Ind 173; Woollen v Wish- meir, 70 Ind 108 By MasTer Where a master is to report the evidence to the court, it must be embodied in the bill before the sig- nature of the trial judge or master is attache d New Albany v Iron Sub- structure Co (Ind, 1895), 40 N e Rep 45; King v Marsh, 37 Ind 389; Stanton v State, 82 Ind 463; Lee v State, 88 Ind 256; McNaught v McAllister, 93 Ind 114 In Indiana the stenographer's long- hand report of the evidence is not a "written instrument" nor ''docu- mentary evidence " within the intent of Rev StatInd 1881, 626, author- izing such instrument or document to be made part of the bill of excep- tions by reference, and where not embodied in the bill before signature by the trial judge itis not before the ap- pellate court. A mere reference in the bill (" here insert "), with the longhand report identified and attached, is in- sufficient.

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The rule we here declare Post Date: Tue, 29 Jul 2008 18:53:24 +0000
Patterson v Churchman, 122 Ind 379; New Albany v Iron Substructure Co (Ind, 1895), 40 N E Rep 45; Ohio, etc, RCo z/ Voight, 122 Ind 288; Wagoner v Wil- son, 108 Ind 210; Barnes z Turner, 129 Ind no; Pennsylvania Co v Brush, 130 Ind 347; McCoy v Able, 131 Ind 417; Pittsburgh,, etc, RCo v Redding (Ind, 1895), 39 N E Rep 921 By Whom Take N It makes no dif- ference who takes down the evidence if it is included in the bill of exceptions before signatur e Benson v Christian, 129 Ind 536 1 Wagoner v Wilson, 108 Ind 215 " Where a bill of exceptions upon a ruling denying a new trial is taken for the purpose of getting the stenog- rapher's report of the evidence, with its incidents, into the record, the original bill maybe certified up to this court as part of the recor d All there is of such a bill, besides the report of the evidence, is composed of formal parts and brief recitals, so that little would be left to be copied if the report of the evidence were taken out. Con- g NARRATION OF THE EVIDENC e Theevidence maybe narrated in substance, a recital by question and answer not being required, 2 fusion is avoided by sending up the bill without detaching the evidence, and only a very little matter outside of the report of the evidence comes up in its original conditio N It is much more consistent with principle, and much safer, to require the entire origi- nal bill to be certified than it is to devolve upon the clerk the duty of determining what shall be left in and what taken out. The rule we here declare enables parties to get the long- hand manuscripts into the record without incurring the useless expense of having it copied, prevents confu- sion in the record, and gives fair and reasonable effect to the statute con- cerning official shorthand reporter S But the rule we declare does not have and cannot be made to have any appli- cation to any other bills of exceptions except such as are prepared for the purpose of bringing into the record the longhand manuscript of the official reporter and its necessary incident S All other bills of exceptions must be copied by the cler K Nor can the rule apply to a bill of exceptions wherein other matters than the longhand re- port and matters legitimately con- nected therewith are sought to be brought into the recor d In order to come within the rule stated the bill of exceptions must be confined to the single office of exhibiting the report of the evidence and the matters directly and properly pertaining theret O" Mc- Coy v Able, 131 Ind 417 To the same effect Wagoner v Wilson, 108 Ind 215; Hull v Louth, 109 Ind 315 1 People v Judge, 32 Mich 259; Rice v Rice, 50 Mich 448; Singer Mfg Co -v Lancaster, 75 Ga 280 Proper For M The evidence in the longhand manuscript should be sifted out.

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2 Fact S Post Date: Tue, 29 Jul 2008 18:37:39 +0000
What is unimportant should be eliminated, and the remainder stated in the record in narrative for M Singer Mfg Co v Lancaster, 75 Ga 280 Otherwise the appellant, if suc- cessful, will not be allowed cost S Rice v Rice, 50 Mich 448 Filin g In Hull v Louth, 109 Ind 337, it is held that if the longhand manuscript of the evidence is filed with and as a part of the bill of exceptions, that is sufficient; and when so filed it may be taken from the bill of excep- tions, and be made a part of the rec- ord on appeal to this court without being copied, citing Williams v Pen- dleto Netc, Turnpike Co, 76 Ind 87; Lee v State, 88 Ind 256; Marshall v State, 107 Ind 173; Galvin v State, 56 Ind 51; Lowery v Carver, 104 Ind 447; Dennis v State, 103 Ind 142; Brehm v State, 90 Ind 140 Effe Ct Where a stenographer's re- port of the evidence is made a part of the bill of exceptions, it controls facts alleged in the formal part of the bill contradictory to its statement S Har- mon v Harmon, 63 Me 437 Missour I Under the practice of Missouri the attachment together of the stenographer's longhand testi- mony, with letters, exhibits, and the like, followed by a skeleton bill stating, " Plaintiff was then sworn as a wit- ness and testified as follows: [here insert testimony of Samuel W Craw- ford], " and with the various witnesses' depositions and motions also attached together, and followed by the signa- ture of the judge, was held sufficient. Crawford v Spencer, 92 Mo 498 2 Grisell v Noel Bro S Flour-Feed Co (Ind App, 1894), 36 N E Rep 453; Harvey v Van de Mark, 71 111 117; Chicago, etc, RCo v Rockford, etc, RCo, 72 111 34; Welch v Palmer, 85 Mich 310; Cole v Circuit Judge, 77 Mich 619 "The bill may recite the evidence in extenso, or it may narrate in a con- densed form the facts proved or which the testimony tended to prove, which are required to clearly comprehend the points ruled on by the court and the instructions given to the jur Y" For- syth v Matthews, 14 Pa St 103 Recapitulatio N But a mere reca- pitulation of conflicting evidence is not sufficient to operate either as a state- ment of facts or a finding of facts by the court S Moller v U S, 57 Fed Rep 494; British Queen Mi N Co v Baker Silver Mi N Co, 139 U S 222; Raimond v Terrebonne Parish, 132 U S 192 Proper For M The most proper form is first to set forth the evidence of- fered, then the court's opinion in favor of its admission, and after- except where that form is necessary to show the error excepted t O 1 11 The Charge A INSTRUCTIONS GIVE N The bill of excep- tions, where error is predicated upon the charge to the jury, must show the instructions excepted to in the court below, or such exceptions will not be considered by the appellate court. 2 Fact S And the evidence must be embodied in the bill where it is sought to show that the charge was erroneous because not rele- vant thereto, 3 or where it is contended that the charge was in- wards to aver that the evidence was give N Allen v Rostain, n S R(Pa) 374- 1 Pennsylvania Co v Nations, in Ind 203 2 California Freeborn v Nor- cross, 49Cal313 Indiana McKinsey v McKee, log Ind 209; Helms v Wayne Agricul- tural Co, 73 Ind 325 And this is so although the instruc- tions may be improperly embodied in the recor d Goldsburg v May, i Litt (Ky) 254- Missour I Montgomery -v Harker, 81 Mo 63; Cadmus v St Louis, etc, Bridge Co, 15 Mo App 86; Davis v Hilton, 17 Mo App 319; Hoyt v Quinn, 20 Mo App 72; Greenabaum v Millsaps, 77 Mo 474; Johnson v Greenleaf, 73 Mo 671; State v She- hane, 25 Mo 565 Nevad A State v Rover, n Nev 343; State v Forsha, 8 Nev 137; State v Burns, 8 Nev 251 Wisconsi N Collins v Breen, 75 Wi S 606 Where All should be Show N The bill of exceptions should show all the instructions on a given subject, where a part is alleged to be incorre Ct Ore- gon R, etc, Co v Galliher, 2 Wash Ter 70 Where Unnecessar Y Unless, as in Texas, the charge is reviewable on appeal without an exception or in- corporation in a bill of exception S Missouri Pac RCo v Rabb, 3 Tex App Civ Ca S, 39 See article AP- PEALS, Recordon Appeal,Vo/ I I, p 258 Modification of Charg e Where the modification of an instruction is ex- cepted to, it must appear from the record that the instruction was modi- fied, and How Burns v People, 126 111 285 How Much Embodie d But only so much of the charge as is excepted to should be embodied in the bil L Phoe- nix L In S Co v Raddin, i2oU S 183; Evans v Eaton, 7 Wheat.

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State, 15 Ala 749; Hill Post Date: Tue, 29 Jul 2008 18:23:50 +0000
(U S) 356; Carver S Jackson, 4 Pet (U S) i; Ex P Crane, 5 Pet (U S) 190; Magniac v Thompson, 7 Pet (U S) 348; Gregg v Sayre, 8 Pet (U S) 244; Stimpson v WestchesterRCo, 3 How ( U S) 553; Zeller v Eckert, 4 How (U S) 289; U S v Rindskopf, 105 U S 418; Lincoln v Claflin, 7 Wal L (U S) 132; Burt v Merchants' In S Co, 115 Mas S I But the mere insertion by the trial court of its general charge in full, to which no exception was taken, al- though unnecessary, cannot injure the appellant, and does not affect the validity of the bil L Hollingsworth v Chapman, 54 Ala 7; Grace v McKis- sack, 49 Ala 163 Answering Appellant's Propositions Seriati M When the court answers seriatim the legal propositions sub- mitted by counsel, and then separately gives what is sometimes called a general charge, and counsel takes an exception to the answers and not to the general charge, the bill of excep- tions brings up only so much of the general charge as is referred to in the answer S Wissler v Hershey, 23 Pa St 336 Instance of Charge Sufficiently Show N A bill of exceptions reciting that coun- sel of the party taking the exceptions was stopped in his argument by the court, and informed by the court that it would charge the jury for the plain- tiff, and the defendant took an excep- tion held, that the bill showed that the charge was given to the jury, and given mere mot U Baker v Russell, 41 Ala 279 By Statut e A statute allowing in- structions to be brought into the record by order of the judge upon filing and signing, does not apply where they are properly made part of the bill of exception S Plank v Jackson, 128 Ind 424 3 Law v Merrills, 6 Wen d ( N Y) 268; U S v Morgan, 11 How (U S) 159; Zeller v Eckert, 4 How (U S) b INSTRUCTIONS REFUSE d Instructions requested by the appellant and rejected by the trial judge must be brought up by the bill in order to have them considere d 2 Evidenc e And the evidence upon which the requested instruc- tions were based must likewise be brought up to show their per- tinenc Y 3 VII I SETTLEMENT OF THE BILL 1 By Whom Prepare d The exceptant or his attorney must reduce the exceptions and matters connected therewith to writing in the proper form of a bill of exception S 4 The trial judge is not required to prepare or 297; Muirhead v Muirhead, 8 Smed M (Mis S) 211 "Tending to Prov e" Where legal questions uncomplicated with any questions of fact are presented, the bill of exceptions should only state that the evidence tended to prove the facts upon which the instructions supposed to be erroneous were given or refuse d Pennsylvania Co v Swann, 37 111 App 85; Schmidt v Chicago, etc, RCo, 83 111 405; Leavitte v Randolph County, 85 111 507 General Charge on Evidence not Con- flictin g So where a general charge is given upon evidence not conflicting as to its effect, all the evidence must be set out in order to sustain an exception to the charge reviewe d Owens v Callaway, 42 Ala 301; Doe v Godwin, 30 Ala 242; Fleming v Ussery, 30 Ala 282; Gaines z/ Harvin, 19 Ala 491; Barnes v Mobley, 21 Ala 232; Griffin v Bland, 43 Ala 542 Or it must be shown that there was con- flicting evidenc e Tracey, etc, Co v Warren, 45 Ala 408; Gaines v Har- vin, 19 Ala 491 Where Unnecessar Y But where instructions, as they stand, contain an error in a statement of the law, no evidence need be brought up to au- thorize reversa L Peden v Moore, I Stew p (Ala) 71; Tharp v State, 15 Ala 749; Rowland v Ladiga, 9 Port. (Ala) 488 1 Tracey, etc, Co v Warren, 45 Ala 408; Brewer v Strong, 10 Ala 961; Greene v Tims, 16 Ala 541 2 State v Schuessler, 3 Ala 419; Pierson v State, 12 Ala 149; Renshaw v Switzer, 6 Mont 464; Kleinschmidt v McDermott, 12 Mont 309 3 Florida Blige v State, 20 Fla 742; Sherman v State, 17 Fla 888; Southern Express Co v Van Meter, 17 Fla 783; Stewart v Mills, 18 Fla 57; McKay v Friebele, 8 Fla 21 Illinoi S Evans v Lohr, 3 111 511 Massachusett S O'Neil v Wolffsohn, 137 Mas S 134; Fuller v Ruby, 10 Gray (Mas S) 285; Wells v Prince, 15 Gray (Mas S) 562; Tappan v Burnham, 8 Allen (Mas S) 65; Stearns v Janes, 12 Allen (Mas S) 582; Milk v Middlesex RCo, 99 Mas S 167; Dale v Harris, 109 Mas S 193; Foster v Ropes, in Mas S 10; Canfield v Canfield, 112 Mas S 233; Coker v Ropes, 125 Mas S 577; Saloman v Hathaway, 126 Mas S 482; Horton v Cooley, 135 Mas S 589; Whitehead, etc, Mac H Co v Ryder, 139 Mas S 366 United State S Phoenix L In S Co v Raddin, 120 U S 183; Worthing- ton v Mason, 101 U S 149; Jones v Buckell, 104 U S 554; Vasse v Smith, 6 Cranch (U S) 226; South- western Virginia Im P Co v Frari, 58 Fed Rep 171 Omission to Instru Ct So the bill must show all the instructions given, where it is alleged that there has been a fail- ure to properly instru Ct Berrenberg v Boston, 137 Mas S 231 In Writin g And where the request must be made in writing, a written request for written instructions should be embodied in a bill of exception S Nickless v Pearson, 126 Ind 477 Charge not Abstra Ct An appellant must set out enough of the evidence in the bill of exceptions to show that the charge requested was not abstra Ct Morris v State, 25 Ala 57; Leverett v Carlisle, 19 Ala 80; Jones v Stew- art, 19 Ala 701; Brazier v Burt, 18 Ala 201; Dent v Portwood, 17 Ala 242; Peden v Moore, i Stew p (Ala) 71; Tharp i. State, 15 Ala 749; Hill v State, 43 Ala 335; King v Crocheron, 14 Ala 822 4 Weems v Weems, 69 Ala 105; Dibble v Truluck, n Fla 139; Weath- erford v Wilson, 3 111 253; Doe v Peeplcs, I Ga I 2 By Whom Settle d The bill of exceptions must be settled by the trial judge, and by him onl Y 2 The appellate court is not authorized to act except by statut e 3 3 Request for Allowanc e The draft of a bill of exceptions should contain the request of the exceptant for its allowance, and be authenticated by the signature of the attorney of the exceptant ; otherwise it may not be noticed by the judg e 4 4 Submission to Adverse Part Y The draft so prepared, or a copy thereof, should be submitted within the time required by law to Appellant's Draft the Basi S The bill of exceptions drafted and tendered on behalf of the exceptant should be taken by the trial judge as the basis of the authenticated bil L People v Judge, 32 Mich 259 And where a proper bill is tendered by the except- ant, it is irregular for the judge to au- thenticate and adopt, in lieu thereof, a bill drafted on behalf of the appelle e Mandamus will not issue, however, to compel the signature of the except- ant's bill where the appellee's bill fairly presents all the points sought to be raised in the rejected bil L People v Judge, 32 Mich 259 By One of Several Appellee S Where the bill of exceptions is proposed and settled on behalf of one only of sev- eral appellees, the other appellees can- not utilize it on appea L Fravvley v Hoverter, 36 Min N 379 Unreasonable Dela Y An appellee cannot obtain a rule to show cause why an appellant should not be com- pelled to settle a bill of exceptions and append it to a writ of error already taken, where appellee has delayed un- reasonably to apply therefoRDillon v Do e 8 Co W ( N Y) 754, not e Justice of Peac e In Nebraska, where it is the duty of the justice of the peace to make up and sign a correct bill of exceptions, it need not be sub- mitted to the parties or their attor- neys, as the provisions of Code Civ Pro, 311, as amended ( Comp Stat571), do not apply to justices of the peac e Leach v Sutp*hen, n Neb 527 1 Edwards, et C Lumber Co v Baker, 3 N Dak 170 And where the judge decides as to amendments, but the bill is not en- grossed in time for his signature, he is not dereli Ct Edwards, etc, Lum- ber Co v Baker, 3 N Dak 170 On RequeSt But it is not, of course, improper or illegal for a trial judge to prepare a bill at the request of the counsel in the cause, if he so desire S Doll v Mundine, 84 Tex 315 Upon Judge's Own Motio N And the trial judge may, upon his own motion, make up the bill; but the parties should have proper notice thereof, which will be presumed to have been given, where the record is silent.

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