Laws

Colorad O Colorado Springs Live Post Date: Tue, 29 Jul 2008 23:30:53 +0000
Illinoi S Garrity v Hamburger Co , 136 111 513 Indiana Louisville, etc, RCo v Murdock, 82 Ind 381; Collins v Col- lins, 100 Ind 266 Marylan d Wolfe v Hauvar, I Gill (Md)84 Missour I Ingram v State, 7 Mo Tennessee Pullen v Lane, 4 Cold W (Tenn) 249; Kelton v Bevins, Cooke (Tenn) 102; Belts v Demumbrune, Cooke (Tenn) 48 Wisconsi N Dunbar v Bittle, 7 Wi S 143; Lain v Shepardson, 23 Wi S 224; Wyman v Buckstaff, 24 Wi S 477; Smith v Carter, 25 Wi S 283; Moul v Moul, 30 Wi S 203; Ripon v Bittel, 30 Wi S 614; Ehle v Brown, 31 Wi S 405; Smith v Lavin, 8 Wi S 265; Kollock v Stevens Point, 37 Wi S 348; Sher- man v Madison Mut In S Co, 39 Wi S 104; Clark v Plummer, 31 Wi S 442; Blossom v Ferguson, 13 Wi S 75; Bean v Whitcomb, 13 Wi S 431; Edle- man v Kidd, 65 Wi S 21; Phillips v Swart, 10 Wi S 426; Semmens v Wal- ters, 55 Wi S 675; Cord v Southwell, 15 Wi S 2ii ; McHugh v Chicago, etc, RCo, 41 Wi S 75; Geekie v Wells, 37 Wi S 362; Power v Rockwell, 39 Wi S 585; Meyer z Prairie du Chien, 9 Wi S 233; Johannes v Youngs, 42 Wi S 401; Gilbank v Stephenson, 30 Wi S 155; Dougherty v North Wiscon- sin RCo, 36 Wi S 402 exception is founded, and which is not required to elucidate any error as- signed, should not be embraced in the bil L Carey v Giles, 10 Ga I Charg e So the general charge of the court when not excepted to should not be included in the bil L Tyree v Parham, 66 Ala 431 Cumulative Testimon Y The record should not be cumbered with the cu- mulative testimony of witnesses who repeat substantially the same fact S Tyree v Parham, 66 Ala 431 Under Code Practic e Under a code statute requiring an exception to "be stated with so much of the evidence or other matter as is necessary to ex- plain it, but no more," a voluminous record certifying up the whole evi- dence, without segregating it into parts accompanying each exception, is improper practic e Eaton v Oregon R, etc, Co, 22 Oregon 497 Book or Document. Where an extract from a voluminous book or document is read in evidence the entire book or document should not be attached to the bil L Chamberlain v Darrington, 4 Port (Ala) 515 Motion in ArreSt Where a bill of ex- ceptions is prepared for and used only on a motion in arrest of judgment, it cannot properly incorporate a written plea of the defendant not entered upon the minute S A motion in arrest of judgment can only be founded on de- fects in the indictment or informatio N People v O'Leary, 77Cal30 California In California, where the exceptant is required to set forth only so much of the evidence as is neces- sary to explain the points specified in his bill of exceptions, it will be pre- sumed that it contains all the evidence given in the cause which was neces- sary to be stated in order to explain the points specified, and that if omitted evidence had been included it would not have prevented a different cas e Abbey Homestead Asso C v Willard, 48Cal614 1 Arizona Newmark v Marks (Arizona, 1890), 28 Pac Rep 960'. Colorad O Colorado Springs Live Stock Co v Godding, 2 Colo App i; Kimmins v Lord, I Colo App 221; Bergundthal v Bailey, 15 Colo257 Georgia Valentine v State, 77 Ga 470; De Peaw v Kaiser, 77 Ga 176 Illinoi S Bates v Bulkley, 7 111 389; Garrity v Hamburger Co, 35 111 App 309; Grimley v Donahue, 36 111 App 550 Indiana Law v Kauffman, 84 Ind 341; Ackerly v Knox County, 89 Ind 581; Louisville, etc, RCo v Mur- dock, 82 Ind 381; Cole v Kidd, 80 Ind 563; Nugen v Cambridge First Nat Bank, 86 Ind 311; Miller v Green, no Ind 569; Shorb v Kinzie, 80 Ind 500; McNeely v Holliday, 105 Ind 324; Lyon v Davis, in Ind 384; Hendrix v Rieman, 90 Ind 119; Hed- rick v Osborne, 99 Ind 143; Wallace v Kirtley, 98 Ind 485; Hedrick v Hedrick, 74 Ind 78; Louisville, etc, RCo v Henly, 88 Ind 535; Price v Price, 89 Ind 90; Downs v Opp, 82 Ind 166; Cartwright v Yaw, 100 Ind 119; Indianapolis, etc, RCo v Adams, 112 Ind 302; Seig v Long, 72 Ind 18; Powers v Evans, 72 Ind 23; Merrifield v Weston, 68 Ind 70; Montgomery v Hamilton, 43 Ind 451; May v Pavey, 63 Ind 4; Kimball v Loomis, 62 Ind 201 ; Bowen v Pollard, 71 Ind 177; Millikan v State, 70 Ind 310; Brown v State, 70 Ind 576; Mc- Ferran v McFerran, 69 Ind 29; Ham- mon v Sexton, 69 Ind 37; French v State, 8l Ind 151; Cosgrove v Cosby, 86 Ind 511; Fellenzer v Van Valzah, 95 Ind 128; Collins v Collins, 100 Ind 266; Jennings v Durham, 101 Ind 391; Brownlee -v Hare, 64 Ind 311; Fouty v Morrison, 73 Ind 333; Co- lumbus, etc, RCo v Griffin, 45 Ind 369; Railsback v Greve, 58 Ind 72; Beineke v Wurgler, 77 Ind 468; State v Peru, etc, RCo, 44 Ind 350; Fasnacht v German Literary Asso C, 99 Ind 133; Griffin v Ransdell, 71 Ind 440; Lee v State, 88 Ind 256; Endsley v State, 76 Ind 467; Clay v Clark, 76 Ind 161; Johnson v Wiley, 74 Ind 233; Morrow v State, 48 Ind 432; Sidener v Davis, 69 Ind 336; Aurora f In S Co v Johnson, 46 Ind 315; Franklin County v Mcllvain, 24 Ind See also v Where Bill Required,3 E-vi- 382; Miller v Voss, 40 Ind 307; Ohio, etc, RCo v Nickless, 73 Ind 382; Lurton v Carson, 2 Blackf (Ind) 464; Elmer v Marsh, 3 Ind App 558; She- waiter v Bergman, 132 Ind 556 Nebraska Schneider v Tombling, 34 Neb 661; Brown v Williams, 34 Neb 376; Missouri Pac RCo v Coon, 15 Neb 232 Ohio Hall v Reed, 17 Ohio 498 Wisconsi N Cha S Baumbach Co v Gessler, 82 Wi S 231 United State S Texas, etc, RCo v Cox, 145 U S 593 Plea of Nul Tiel Kecor d -Where a recital in a judgment entry states that the plea of nul tiel record to a scire facias against a defaulting wit- ness "was overruled" it means that the issue on the plea was tried and de- cided adversely to the defendant, and unless the evidence is brought up by a bill of exceptions the appellate court cannot review the decisio N Pomeroy v State, 40 Ala 63 To review a decision on a plea of nul tie* record the bill of exceptions must show the evidence on which the trial was ha d Fowler v Co M, 4 T b Mo N (Ky) 128 Challenge of Juryme N Where the bill does not purport to bring up all the evidence relating to the qualifications of jurors a general challenge cannot be reviewe d Chicago, etc, RCo v Aldrich, 134 111 14 Statement that Facts were " Prove d" A statement in a bill of exceptions that a party "proved" certain facts was said, in Riggin v Patopse In S Co, 7 HaR J (Md) 281, to mean nothing more than that he offered evidence of the M "Tending to Prov e" Ordinarily a statement in the bill that evidence was given on the trial " tending to prove " a certain point is insufficient.

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Where the record affirmatively shows Post Date: Tue, 29 Jul 2008 23:16:08 +0000
It must be shown that the point was prove d U S Express Co v Bachman, 2 Cin e SupeRCt Rep (Ohio) 251; Hooker v Wittenberg College, 2 Cin e SupeRCt Rep (Ohio) 353; Eclipse In S Co v Schoemer, 2 Cin e SupeRCt Rep (Ohio) 474 But a statement that a plaintiff " in- troduced evidence tending to prove" a certain allegation, shows that there was evidence enough to submit to the jury and to warrant a favorable find- Admitted Fact S But where facts are admitted by the parties, it is sufficient if the bill so shows without the incorporation therein of the evidence tending to prove or disprove the M 1 b ALL THE EVIDENC e But the entire evidence introduced on the trial should not ordinarily b^ incorporated in the bill of exceptions, 2 except where a review of all the testimony given is ing thereon in plaintiff's favoRMarsh v Snyder, 14 Neb 237 Legal Effe Ct So a mere statement of the supposed legal effect of documen- tary evidence is, of course, wholly in- sufficient. Lee v Porter, 63 Ga 346 Evidence "Offere d" It is not enough to state that evidence was "offered" to make it a part of the bill of excep- tion S It must be definitely stated that it was introduced or give N Peck v Louisville, etc, RCo, 101 Ind 366; Lyon v Davis, in Ind 384; Baltimore, etc, RCo v Barnum, 79 Ind 261; American In S Co v Gallahan, 75 Ind 168; Douglass v State, 72 Ind 385; Woollen v Wishmier, 70 Ind 108; Good wine v Crane, 41 Ind 335; Fel- lenzer v Van Valzah, 95 Ind 128; Garrison v State, no Ind 145; Cen- tral Union Telephone Co -v State, no Ind 203; Battle Creek Nat Bank v Lock, 132 Ind 424 Compare Page v O'Brien, 36Cal559 Where Sufficient. Where the record affirmatively shows that all the evi- dence "offered" was actually intro- duced, the recital is sufficient.

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Stout v Woods, 79 Ind Post Date: Tue, 29 Jul 2008 22:58:03 +0000
Harris v Tomlinson, 130 Ind 426 A recital in the bill that defendant offered evidence to which the plaintiff objected, but his objection was over- ruled and plaintiff excepted, sufficiently shows that the evidence was actually given to the jur Y Yarbrough v Hud- son, 19 Ala 653 By Charg e So where a bill of excep- tions fails to show that a note sued on was shown to the jury, but does show a charge predicated thereon, it will be presumed to have been shown in evidenc e Hooker v Johnson, 10 Fla 199 1 Proctor v Cole, 66 Ind 579 Notice of Special Matter S So where notice is required that special mat- ters will be introduced in evidence, it should appear in the bill of excep- tions, to sustain an objection on that ground, that such notice was not in fact give N Hobson v Croft, 9 Pa St 363- Affidavit S Where affidavits appear in the bill, it must show that they have ' been filed or use d State v Parsons, 7 Nev 57 Deposition S An objection that dep- ositions taken in an action of eject- ment should have been suppressed because there was no affidavit on file, cannot be considered where the bill of exceptions fails to show whether an affidavit was in fact on the files or not. Charter v Graham, 56 111 20 Eecital in Motio N But the recital of facts in a motion embodied in the bill of exceptions is not evidence that the facts recited existed unless the court so certifie S Herring v State, i Iowa 205; Pharo v Johnson, 15 Iowa 560 2 Alabama Meredith v Naish, 4 Stew p (Ala) 59; Chamberlain v Darrington, 4 Port (Ala) 515 Indiana Shimer v Butler Uni- versity, 87 Ind 218; Johnson v Wiley, 74 Ind 233; Pedigo v Grimes, 113 Ind 148; Shorb v Kinzie, 80 Ind 500; Hedrick v Osborne, 99 Ind 143; Conden v Morningstar, 94 Ind 150; Wells v Wells, 71 Ind 509; Downs v Opp, 82 Ind 166 Orego N Richards v Fanning, 5 Oregon 356; State v Lee Yan Yan, 10 Oregon 365 Washingto N Yelm Jim v Terri- tory, i Wash Ter 63; Brown e Forest, I Wash Ter 201; Oregon R, etc, Co, v Galliher, 2 Wash Ter 70 Equity Case S Where a bill of excep- tions is employed in equity cases, all the evidence should be incorporated therein to enable the appellate courts to review the facts as well as the la W Johnson v Johnson, 4 Wi S 135; Bigelow v Goss, 5 Wi S 83; Flint v Jones, 5 Wi S 84; Riker v Scofield, 6 Wi S 367; Shaw v Shaw, 8 Wi S 168; Davidson v Davidson, 10 Wi S 86 Affecting the Point Raise d And all the evidence in any wise affecting the point raised must of course be in- clude d Alabama Brewer v Strong, 10 Ala 961; GreeneRTims, 16 Ala 541; Keath v Patton, 2 Stew (Ala) 38; required to enable the appellate court to determine the questions raised, 1 as where a ruling granting or denying a new trial on If all the evidence relating to the point to be considered is given, the bill is sufficient. Stout v Woods, 79 Ind 108 Shown by Pleadin g In Nisbett v Brown, 30 Ark 589, it was held that where the facts relied on as a defense were set out in the answer, and the bill of exceptions showed that the ap- pellant proposed to prove the facts so set forth, the facts offered in evidence by the appellant and excluded by the court were sufficiently shown without being again embodied in the bil L Challenge of JuroRWhere excep- tion is taken to a decision on challenge of a juror, all the evidence must be brought up in the bill upon which the decision reste d State v Tom, 8 Oregon 177; Hayden z/ Long, 8 Ore- gon 244; McAllister v Territory, i Wash Ter 360 Comparison of Handwritin g All the evidence upon which the court allows one writing to be used as a standard of comparison as to the genuineness of the handwriting of the other must be sent up in the bill of exception S Pavey v Pavey, 30 Ohio St 600 Defect of Proof Where a defect of proof is a ground of ruling and excep- tion, then the particulars in which the proof is supposed to be defective should be briefly stated in the bill, and all the evidence offered in anywise connected with such supposed defect should be set out in the bill of excep- tion S Blake v Pitcher, 46 Md 463 1 State v Fritterer, 65 Mo 422; Hop- kins v Dowd, ii Ark 627; Swain v Cawood, 3 111 505; Buckmaster v Cool, 12 111 74; Sparling v Conway, 6 Mo App 283 In Huffman v Hughlett, n Lea (Tenn) 549, it was held that where a circuit judge, in a case tried by him without a jury, finds the facts estab- lished by the evidence and embodies them in a bill of exceptions without objection by the parties, the objection cannot be taken on appeal that the bill of exceptions does not contain all the evidenc e And in Michigan the presumption is said to be that, when a particular point is raised by a bill of exceptions, and evidence is set out in the bill as bear- ing or evidently tending to bear upon that point, unless the contrary in Bendall v Bendall, 24 Ala 295; Reese v Gresham, 29 Ala 91 Arkansa S Ballentine v State, 48 Ark 45 Colorad O Loveland v Sears, i Colo433; Watson v Hahn, i Colo494; Kansas Pac RCo v Twombly, 2 Colo559; Schwed v Robson, 12 Colo400; Martin v Force, 3 Colo199; Wasson v Dyer, 3 Colo398; Law v Brinker, 6 Colo555; Marshall Silver Mi N Co v Kirtley, 8 Colo108; Harkinson v Dry Placer Amalgamat- ing Co, 6 Colo269; Nevin v Lulu, etc, Silver Mi N Co, 10 Colo357; Gibbs v Wall; 10 Colo153; Craig v Young, 2 Colo112 District of Columbi A U S v Mc- Bride, 18 d C 371 Georgia Hobbs v Longstreet, 72 Ga 898 Illinoi S Auburn v Goodwin, 128 111 65; Riely v Barton, 32 111 App 528 Indiana Hughes v Dougle, 17 Ind 399 Kansa S Boyd v Sanford, 14 Ka N 280; Moody v Arthur, 16 Ka N 419; Clark v Parkville, etc, RCo, 5 Ka N 654 Maine Ricker v Joy, 72 Me 106 Marylan d Barnes v Blackiston,4 HaR J (Md) 376 Ohio Wagers v Dickey, 17 Ohio Orego N State v Jackson, 9 Oregon Tennessee M'Gavock v Ward, Cooke (Tenn) 405; Doe v Hodges, 5 Humph (Tenn) 105 Texa S Yeiser v Burdett (Tex Civ App, 1895), 29 S W Rep 912 Wisconsi N Collins v Breen, 75 Wi S 606; Doty v Strong, i Pi N (Wi S) 165; Millett v Hayford, I Wi S 401; Moss v Vroman, 5 Wi S 147; Gillett v Phelps, 5 Wi S 429; Sewell v Eaton, 6 Wi S 490; Savage v Drake, 8 Wi S 272; Concanon v Blake, 16 Wi S 518; Werner v Schreck, 2 Pi N (Wi S) 394 But only enough evidence should be included in order to fairly present the error allege d The Barge Resort v Brooke, 10 Mo 531; Wallace v Boston, 10 Mo 660; Steamboat Lehigh v Knox, 12 Mo 510; Cole v Circuit Judge, 77 Mich 619; Whitaker v Kil- roy, 70 Mich 635 some way appears, no evidence was given which would alter the effect of that which is state d Atlas Mi N Co v Johnston, 23 Mich 36; Shaw v Hoffman, 25 Mich 163 1 Georgia Mann v Archer, 69 Ga 767; Hightower v Flanders, 69 Ga 772 Illinoi S Troy z Reilley, 4 111 259 Indiana Princeton School Town v Gebhart, 61 Ind 187; Smith v Stan- ford, 62 Ind 392; Walser v Kerrigan, 56 Ind 301; Stout v Woods, 79 Ind 108; Johnson v Wiley, 74 Ind 233; Wells v Wells, 71 Ind 509; Brownlee v Hare, 64 Ind 311; Ausem v Byrd, 6 Ind 475; Goben v Goldsberry, 72 Ind 44 See also article NEW TRIA L Mississipp I Phillips v Lane, 14 Ho W (Mis S) 122; Carprew v Cana- van, 4 How (Mis S) 370; Terry v Robins, 5 Smed M (Mis S) 291; Wright v Alabama Bank, 6 Smed M (Mis S) 251; McRaven v McGuire, 9 Smed M (Mis S) 34; Porter v Duglass, 27 Mis S 379 Nebraska Roberts v Hershiser, 20 Neb 594; Garneau Cracker Co v Palmer, 28 Neb 307; Wilcox v Saun- ders, 4 Neb 569; Schroeder v Rine- hard, 25 Neb 75 Ohio Cantwell v State, 18 Ohio St 477; Tilton v Morgaridge, 12 Ohio St 98; Eastman v Wight, 4 Ohio St 156; Youmans z Caldwell, 4 Ohio St 71; Wilson v State, 2 Ohio St 319; Ide v Churchill, 14 Ohio St 372; Hurley v State, 6 Ohio 399; Hall v Ree d 17 Ohio 498; Mxisser v Chase, 29 Ohio St 577 Newly Discovered Evidenc e Where a motion for new trial is based upon newly discovered evidence, both the evidence heard on the original trial and the newly discovered evidence heard on the motion should be em- bodied in the bill of exceptions, to- gether with the verdi Ct Sanders v Loy, 45 Ind 229 Compare, as sup- porting directly or inferentially the rule, Allen v Gillum, 16 Ind 234; Mc- Kee v McDonald, 17 Ind 518; Craw- ford v Martin, 19 Ind 370; Glidewell v Daggy, 21 Ind 95; Cox v Hutch- ings, 21 Ind 219; Miller v Seligman, 58 Ind 460; Pattison -v Wilson, 22 Ind 358; House v Wright, 22 Ind 383; Huntington v Drake, 24 Ind 347; Freeman v Bowman, 25 Ind 236; Owen v Owen, 57 Ind 291; Bishop v Welch, 54 Ind 527 So in Mississippi, where a judgment of the court below refusing a new trial is brought up to the appellate court for review, and the testimony is set out in the record under a statute requiring the substance of the testi- mony given to be incorporated held, that it would be presumed that the substance had been so incorporate d Stamps v Bush, 7 How (Mis S) 266 Demurrer to Evidenc e The action of the trial court in sustaining a de- murrer to evidence will not be re- viewed unless the whole evidence or the substance as agreed upon is pre- sented in a bill of exception S Tozer v Clark, 8 Mo App 577 In Virginia and West Virginia it is held that where an exception is taken to an order overruling or sustaining a motion for new trial the bill of excep- tions must state, not the evidence on the trial, but only the facts appearing to the court to have been prove d Mor- gan v Fleming, 24 W Va 193; Renick v Correll, 4 W Va 627; Dusenberry v Alford, 5 W Va 115; Bennett v Hardawa Y 6 Munf ( Va) 125; Jackson v Henderson, 3 Leigh ( Va) 196; Brooks v Galloway, 12 Leigh ( Va) 466; Taliaferro v Franklin, I Gratt ( Va) 332; Pasley v English, 5 Gratt ( Va) 141 ; Forkner v Stuart, 6 Gratt ( Va) 197; Grayson v Co M, 6 Gratt ( Va) 712; Pryor -v Kuhn, 12 Gratt ( Va) 615 The bill of exceptions in such case is equivalent to a demurrer to evi- denc e Morgan v Fleming, 24 W Va 195, citing Carrington v Bennett, i Leigh ( Va) 340; Ewing v Ewing, 2 Leigh ( Va) 337; Mays v Callison, 6 Leigh ( Va) 230; Rohr v Davis, 9 Leigh ( Va) 30; Patteson v Ford, 2 Gratt ( Va) 18; Parish v Reigle, n Gratt ( Va) 720; Carrington v God- din, 13 Gratt ( Va) 587; Newlin v Beard, 6 W Va no; Black v Thomas, 21 W Va 709; Randolph v Longdale Iron Co, 84 Va 457; Hodge v Rich- mond First Nat Bank, 22 Gratt ( Va) In Morgan v Fleming, 24 W Va 195, the following rules were said to be established by the cases: I If the bill is in form a certificate of the evidence, and there is no incon- sistency or conflict in the evidence thus certified, the appellate court will re- gard and treat it as the equivalent of a certificate of fa Ct Findin g And where it is sought to review a finding of the court or jury, all the evidence given and upon which the finding is based should be incorporated in the bill of exception S 1 Taking Case from Jur Y Where error is alleged in the action of the court in taking or refusing to take the case from the jury, all the evidence should be include d 2 Substanc e Where all the evidence is required, a statement of the substance is not enoug H 3 C CERTIFICATION AS TO ALL THE EVIDENCE (i) Generall Y Where required, it should be shown by express and positive certification of the trial judge attached to the bill that all the evi- dence given on the trial is included therei N 4 I I When the bill certificates, though improperly, the evidence and not the facts, and the evidence is not conflict- ing, the appellate court will not decline to consider it in a case in which after rejecting all the conflicting parol evi- dence of the exceptor, and giving full faith and credit to all the evidence of the adverse party, the decision of the trial court still appears to be wron g In such case the court will treat the certificate the same as it would a de- murrer to evidenc e II I But where the evidence in such case is certified, and all the material evidence of the exceptor is parol and in conflict with that of the opposite party, so that where the exceptor's parol evidence is rejected, as it must be by the appellate court, the action of the trial court will appear to be plainly right, the appellate court will not in such case consider such certifi- cate or review the action of the trial court.

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App 471; Louisville, etc Post Date: Tue, 29 Jul 2008 22:39:25 +0000
And, see Green v Ashby, 6 Leigh ( Va) 143; Sammons v Haw- ver, 25 W Va 678; Read v Co M, 22 Gratt ( Va) 924 In general, however, where the evi- dence is conflicting, the trial judge may refuse to certify the facts proved, but cannot legally refuse to certify the evidenc e Powell v Tarry, 77 Va 250; Grayson v Co M, 6 Gratt ( Va) 712; Dillard v Dunlop, 83 Va 755; "\iaiden v Co M, 12 Gratt ( Va) 727; C%iwell v Craig, 21 Gratt ( Va) 136; Blosser v, Harshbarger, 21 Gratt ( Va)2i5 1 Gale v Parks, 58 Ind 117; Frank- lin In S Co v Cook, 57 Ind n; Hill v Sutton, 47 Ind 592; Aspinwall v Sabin, 22 Neb 73; Reid v Sycks, 27 Ohio St 285; Schmidt v Chicago, etc, RCo 83 111 407; Harris v Miner, 28 111 135 To Establish Fact S So where it is claimed that there is no evidence in the case sufficient to establish certain ma- terial facts, the bill of exceptions should contain a report of the whole evidenc e Gunnison v Langley, 3 Allen (Mas S) 337 2 Finch v Karste, 97 Mich 20; Ringgold v Haven, iCal109; Atter- berry v Portland, etc, RCo, 18 Oregon 85; Paine v Smith, 32 Wi S 335; Collins v Breen, 75 Wi S 606; Texas, etc, RCo v Cox, 145 U S Motion to Set Aside Judgment. So, on appeal from an order entered on a motion to set aside a judgment by de- fault, all the evidence must be brought into the bil L Wheeler Chemical Co v Alexander, 30 111 App 502 3 Pittsburgh, etc, RCo v Probst, 30 Ohio St 104; Blankenship v North Missouri RCo, 48 Mo 376; Gulf, etc, RCo v Washington, 49 Fed Rep 347- Nor is it sufficient to set out in the bill part of the evidence, and then to state that the rest " tended " to prove such and such fact S Walker v Devlin, 2 Ohio St 605 It should be shown tht such facts were prove d Bourne v Merritt, 22 Vt 430 4 Illinoi S Ohio, etc, RCo v Cope, 36 111 App 97; Snell v People, 29!!!. App 471; Louisville, etc, RCo v Harlan, 31 111 App 544; Grim- ley v Donahue, 36 111 App 551; Pat- terson v Folsom, 30 111 App 435; Robertson S Morgan, 38 111 App 138; Wheeler Chemical Co v Alexander, 30 111 App 504; Weatherford v Wil- son, 3 111 253; McLaughlin v Walsh, 4 111 185; Rowan v Dosh, 5 111 460; Cook County v Calumet, etc, Canal, etc, Co, 131 111 505; Mt Vernon v Lee, 36 111 App 24 "Testimon Y" The word "testimony" is not equivalent to the word " evidence," and a certificate therefore that the bill includes " all the testimony " instead of " all the evidence " is insuffi- cient.

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Coffin v McClure, 23 Ind Post Date: Tue, 29 Jul 2008 22:20:59 +0000
1 (2) Form of Certificat e No exact formula is ordinarily re- quire d* It is sufficient if the certificate of the judge uses any Indiana Nay v Byers, 13 Ind 412; So a certificate of evidence starting Fellenzer v Van Valzah, 95 Ind 128 out, "The plaintiff, to maintain the Nebraska Faulkner v Meyers, Neb 414; Omaha, etc, RCo v Menk, 4 Neb 21 Ohio Meyer v Schroeder, 6 Cin e L Bul L (Ohio) 698; Buck v Mills, 6 Cin e L Bul L (Ohio) 665 Verity of the Eecor d Where a bill purports to contain all the evidence, it cannot be contradicted by any evidence outside the contents of the bill itself Vermillion v Nelson, 87 Ind 194 Indiana A very severe rule is laid down in some earlier case S Thus in Hamilton v Johnson, 20 Ind 392, it was held that a rule of practice requir- ing a bill of exceptions to state, in order to show the inclusion of all the evi- dence, "this was all the evidence given in the cause," was a technical prerequisite; and that a bill stating, after giving the testimony, "which was all the evidence given in the cause," was insufficient. To the same effect, Cook v Anderson, 20 Ind 15; Chapel v Washburn, n Ind 393 The above rule was rescinded in Indiana by Rule 22, Supreme Court. Coffin v McClure, 23 Ind 356 And compare Smith -v Anthony, 16 Ind 267 1 " Testimon Y" A recital that " this was all the testimony given in the cause" is insufficient, since the word does not include documentary evidenc e Kleyla v State, 112 Ind 146; Harvey v Smith, 17 Ind 272; Brickley v Weghorn, 71 Ind 497; Sessengut v Posey, 67 Ind 408; Ga- zette Printing Co v Morss, 60 Ind 153; McDonald v Elfes, 61 Ind 279; Ingel v Scott, 86 Ind 518; Central Union Telephone Co v State, no Ind 203; Barley v Dunn, 85 Ind 338; Longworth v Higham, 89 Ind 352, overruling O'Brien v Flanders, 41 Ind 486, which held the word a substantial substitute for "evidenc e" Where "Testimony " Sufficient.

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Allen v Law- rence, 64 Post Date: Tue, 29 Jul 2008 22:02:11 +0000
The word "testimony" may be sufficient where, taken in connection with the other recitals of the bill, it is shown equivalent to evidenc e Harris v Tomlinson, 130 Ind 426 issues on its part, gave the following evidence;" and concluding, " and the foregoing was all the testimony ad- duced by either party on said trial " was held to show inclusion of all the evidenc e 580 " Following Evidenc e" And in Ben- der v State, 26 Ind 285, it was held that a statement in the bill, "the fol- lowing evidence was before the court," was insufficient to show that all the evi- dence was before the court, or that "this closed the evidence in the cas e" See also Bender v Wampler, 84 Ind 172 "Introduce d" "Introduced" is a valid substitute for the word " give N" Jones v Layman, 123 Ind 569; Stair v Richardson, 108 Ind 429; Brock v State, 85 Ind 397; Kennedy v Divine, 77 Ind 490 " Substance of Evidenc e" A certifi- cate that the bill contains the "sub- stance of the evidence introduced" is not sufficient, because the appellate court may deem the evidence of value which was omitted as unsubstantia L Omaha, etc, RCo v Menk, 4 Neb 21 ; Faulkner v Meyers, 6 Neb 414 But in Townley v Chicago, etc, RCo, a certificate to the bill of excep- tions stating that "the foregoing is the substance of all the testimony given on the trial," was held sufficient to show that there was no other evidence to justify a nonsuit. Townley v Chi- cago, etc, RCo, 53 Wi S 626 Arguments of Counse L The state- ments of the bill cannot be supple- mented by new facts adduced by coun- sel on the argument. Allen v Law- rence, 64 Me 175 Imperfect Bil L When the judge ^nc- pressly certifies that the bill is " im- perfect," without regard to the evi- dence, errors depending thereon will not be reviewe d Wiggins v State, 23 Fla 180 2 Grisell v Noel Bro S' Flour-Feed Co (Ind App, 1894), 36 N E Rep 452 1 Grisell v Noel Bro S' Flour-Feed Co (Ind App, 1894), 36 N E Rep 452; Jones v Layman, 123 Ind 569; Beatty z/ O'Connor, 106 Ind 81; Brock v State, 85 Ind 397 Sufficient Certificat e At the close of the evidence it was certified that " this was all the evidence given said caus e" Held, sufficient.

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Gardner v Chicago, etc, RCo Post Date: Tue, 29 Jul 2008 21:47:48 +0000
Grisell v Noel Bro S' Flour-Feed Co (Ind App, 1894), 36 N E Rep 452 Verit Y The certificate of the judge that the bill of exceptions includes all the evidence, is unimpeachable by evi- dence outside the bill itself Good- win v Durham, 56 111 240 2 Arkansa S Hibbard v Kirby, 38 Ark 102 Illinoi S People v Henckler, 137 111 580; Stickney v Cassell, 6 111 418; Ruckmaster v Cool, 12 111 74; Harris v Miner, 28 111 135; Marine Bank v Rushmore, 28 111 463 VirginiaMcArter v Grigsby, 84 Va 159 West VirginiaEdgell v Cona- way, 24 W Va 747 Presumptio N Where it expressly purports to set out the evidence it will be presumed to do so, unless it appears from the contents of the bill itself that portions are omitte d Porter v Duglass, 27 Mis S 379 3 Arkansa S Everett v Clements, 9 Ark 480; Jordan v Adams, 7 Ark 348 Florida Robinson v Hartridge, 13 Fla 501 Indiana Beatty v O'Connor, 106 Ind Si; Brock v State, 85 Ind 397; Ford v Mitchell, 21 Ind 54; Branham v Bradfor d 17 Ind 47; Raderz Barr, 7 Ind 194; Estep v Larsh, 21 Ind 183; Peck v Louisville, etc, RCo, 101 Ind 366; American In S Co v Galla- han, 75 Ind 168; McClure v Pursell, 6 Ind 330 Michiga N Carter v Snyder, 27 Mich 484; Hitchcock v Burgett, 38 Mich 501 Tennessee Trott v West, Meigs (Tenn) 169; Yates v State, 10 Yerg (Tenn) 550 United State S Waldron v Waldron (U S, 1895), 15 Supreme Ct Rep 387- Where the bill first showed " that the appellee Sto support the issues on their part, read to the jury the three notes sued on," then " that the defendant, to establish payment of said notes, in- terlined," etc, naming several wit- nesses and detailing the testimony of each, then "no further testimony being offered, plaintiffs asked the fol- lowing instructions, and concluded by praying " that this bill of exceptions containing all the facts of the case, be signed " held, to sufficiently show the inclusion of the evidenc e Everett v Clements, 9 Ark 480 "Submitte d" Where the bill sets out the evidence which was in- troduced by the parties, and that offered and excluded, and states " whereupon the cause was sub- mitted " held, sufficient to warrant the appellate court in inferring that all the evidence was include d Leg- gett v Grimmett, 36 Ark 500 "Given on the Tria L" A statement at the conclusion of the recital of the evidence "this is all the evidence given in the trial " is sufficient. Gay v De Werff, 17 111 App 417; Long- worth -v Higham, 89 Ind 352 " Substanc e" A recital that "the foregoing constitutes the substance of all the evidence introduced by tr- parties on the trial of said cause " is sufficient. Gardner v Chicago, etc, RCo, 17 111 App 262 Given in Behalf Where a bill pur- ported to contain the evidence " which the plaintiff gave in his behalf" as well as the evidence given " in behalf of the defendant " held, to sufficiently show the inclusion of all the evidenc e Robinson v Hartridge, 13 Fla 505 " Bested Cas e" A bill of exceptions constructed in a connected narrative form, giving the testimony of each witness and closing with the state- ment "and thereupon the defendants rested their case," will be presumed to contain all of the evidence bearing on Where Inference is not Justifie d Where, however, there is nothing in the language or facts shown by the bill to justify a reasonable inference that it contains all the evidence, it cannot be so pre- sume d 1 the question raise d Ironvvood Store Co -v Harrison, 75 Mich 197; Pease v Munro, 83 Mich 475 "Upon the Foregoing Evidenc e" A bill of exceptions stating that "upon the foregoing evidence and admis- sions, the written vouchers on file, and on no other evidence," the court ren- dered its final decree, was held to show sufficiently the inclusion of all the evi- denc e Ivey v Coleman, 42 Ala 409 " Upon this Evidenc e" -Where a bill of exceptions recites in detail the evi- dence introduced by both parties, and adds, " upon this evidence the defend- ants asked the court in writing to charge the jury as follows: ' If the jury believe all the evidence they will find for defendants,' " it was held that this shows with sufficient certainty, taken in connection with the charge itself, that the facts set forth con- stituted in substance the whole of the evidence on which the charge was base d Walker v Carroll, 65 Ala 61; Alexander v Wheeler, 69 Ala 332, overrttling Kirksey v Hardaway, 41 Ala 330; Bridges v Cribbs, 41 Ala Presumptio N So where a bill of ex- ceptions begins with the formula that " the state, to maintain the issue on its part," swore a certain witness, whose testimony with that of the others followSj and then recites that the state closed, and that the defendant after calling five witnesses, whose testi- mony is given in full, also closed, it will be inferred that it contains all the evidence though it does not ex- pressly negative the introduction of other testimon Y Overman v State, 49 Ark 364 1 Montgomery v Doe, 4 Ind 266; Reno -v Crane, 2 Blackf (Ind) 217; Lurton v Carson, 2 Blackf (Ind) 464; Doe v Hall, 2 Ind 24; Davis v Bin- ford, 58 Ind 457; Redden v Coving- ton, 29 Ind 118; Griggs v State, 58 Ala 425 As, " upon this evidence the court found for the plaintiffs," Redden v Covington, 29 Ind 118; or "the fol- lowing was all the evidence offered," Goodwine v Crane, 41 Ind 335 Where a bill of exceptions details certain evidence, and then says "whereupon the court decided," this does not show that the bill of excep- tions includes all the evidenc e Foster v Nowlin, 4 Mo 18 A bill reciting that "upon this tes- timony " a ruling, act, or decision was had, is insufficient, without more, to show the inclusion of all the evidence, Raines v Raines, 30 Ala 425; or " upon the foregoing evidence the court decided," Kirksey v Hardaway, 41 Ala 330; Bridges v Cribbs, 41 Ala 368; or " under the facts stated within, the court held and ordered," May v Lewis, 41 Ala 315; or "on this state of facts the court charged the jury," Griffin v Bland, 43 Ala 542; Keep v Kelly, 29 Ala 322; or " upon such tes- timony alone as is filed in the papers and record of said court," Blackwell v Blackwell, 39 Ala 337; or a bill stating, after setting out certain evidence, that "thereupon" the court rendered its decisio N Southern Mut In S Co v Holcombe, 35 Ala 327 "Outlin e" A recital "this is an outline of all the evidence in the case " was held insufficient.

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(Pa) 357; Kiel v Co Post Date: Tue, 29 Jul 2008 21:37:27 +0000
Buckmaster v Cool, 12 111 74 "Closed the Evidenc e" A statement " this closed the evidence in the case " is not equivalent to "this was all the evidence given upon the trial of the caus e" Bender v Wampler, 84 Ind Testimony like that of Another Witnes S It is not sufficient for the bill of ex- ceptions to state that the testimony of one witness was substantially like that of another set out in ful L Yates v George, 51 Ind 324 Becital as to What Testifie d And a mere recital in the record as to what a witness testified to was held not equivalent to the testimony itself Wreidt v State, 48 Ind 580; Mc- Laughlin v State, 52 Ind 477 Estoppel to Allege Omission S Where a bill of exceptions purporting to con- tain all the evidence is submitted to the adverse party and returned certi- fied by him that he has no amendments to make, the presumption will be made that such bill contains all the evidenc e Cattle v Haddox, 14 Neb 59 Certificate not Conclusiv e A certification that the bill includes the entire evidence is wholly insufficient where the bill itself affirma- tively shows that portions of the evidence have been omitte d 1 8 Evidence Eejected over Objection A GENERALL Y Where the exception alleges error on the part of the trial court in the rejection of evidence, such excluded evidence must be incorpo- rated in the bill of exception S 8 1 Indiana Rhea v Crunk (Ind App, 1895), 39 N E Rep 879; Mor- row v State, 48 Ind 432; Ward v Bateman, 34 Ind no; Smith v State, 28 Ind 321; State v Swarts, 9 Ind 221; Hinkle v Margerum, 50 Ind 240; Harris v Tomlinson, 130 Ind 426; Lawrenceburgh Furniture Mfg Co v, Hinke, 119 Ind 47; Saxon v State, 116 Ind 6; Cowger v Land, 112 Ind 263; Louisville, etc, RCo v Gran- tham, 104 Ind 353; Collins v Collins, IOO Ind 266; French v State, 81 Ind 151; Shimer v Butler University, 87 Ind 218; Garrison v State, no Ind 145; Powers v Evans, 72 Ind 23; Thames Loan, etc, Co v Beville, 100 Ind 309; Jennings v Durham, 101 Ind 391; Fasnacht v German Literary Asso C, 99 Ind 133; Stout v Turner, 102 Ind 418; Beineke v Wurgler, 77 Ind 468; Lee v State, 88 Ind 256; Pavey v Wintrade, 87 Ind 379: Hus- ton -v McCloskey, 76 Ind 38; Eigen- man v Rockport Bld g, etc, Asso C, 79 Ind 41; Hockett v Johnson, 87 Ind 251; Lyon v Davis, in Ind 384 Michiga N American In S Co v Woodruff, 34 Mich 7 Nebraska Oberfelder v Kava- naugh, 29 Neb 427; Missouri Pac RCo v Hays, 15 Neb 224 Ohio Armleder v Lieberman, 33 Ohio St 77 Written Evidenc e The bill is insuffi- cient where it declares that it contains all the evidence, but shows that cer- tain written evidence which it does not contain was admitte d Pavey v Wintrade, 87 Ind 379; Eigenman v Rockport Bld g, etc, Asso C, 79 Ind 41; Huston v McCloskey, 76 Ind 38; Shimer v Butler University, 87 Ind 218; Hockett v Johnson, 87 Ind 251 Rebutta L The presumption is re- butted where the bill itself shows that evidence was introduced which is not embodied in the bil L Taussig -v St Louis, etc, RCo, 8 Mo App 578 Missour I Under Rule 7 Supreme Court of Missouri (see 48 Mo Rep), adopted 1871, the bill need not recite that all the evidence is preserved therein, as this will now be presume d Silvey v Summer, 61 Mo 253; Peltz v Eichele, 62 Mo 171 Marylan d In Maryland it is held that where an exception was taken below involving the sufficiency of the evidence, the appellate court must presume, where the contrary does not appear, that all the evidence has been incorporated in the bill according to the 5th rule respecting appeal S Scar- lett v Academy of Music, 43 Md 203 2 Alabama Tolbert v State, 87 Ala 27 Georgia Watts v Colquitt, 66 Ga 492; Marland v Kemp, 70 Ga 786; Hawes v Hawes, 66 Ga 142 Illinoi S Stack v People, 80 111 32; McLaughlin v Walsh, 4 111 185; Clif- ford v Drake, 14 111 App 75; Eliza- bethtown v Lefler, 23 111 90 Indiana Indianapolis, etc, RCo v Irish, 40 Ind 277; Grover, etc, Sew- ing Mac H Co v Newby, 58 Ind 570; Miller v State, 56 Ind 187; Ferguson v Hirsch, 54 Ind 337; Chamness v Chamness, 53 Ind 301; Adams v Cosby, 48 Ind 153; Lewis v Lewis, 30 Ind 257; Downs v Downs, 17 Ind 95; Keene v Russell, 80 Ind 163; Langohrv Smith, 81 Ind 495; Buscher v Scully, 107 Ind 246; Vanderkarr v State, 51 Ind 91; Gipe v Cummins, 116 Ind 511; Sullivan County v Arnett, 116 Ind 438 Iowa Paddleford v Cook, 74 Iowa 433; Donnelly v Burkett, 75 Iowa 613 KentucKy Todd v Louisville, etc, RCo (Ky, 1889), ii S W Rep 8 Maine, Merrill v Merrill, 67 Me 70 Massachusett S Bigelow v Sprague, 140 Mas S 425; Crowley v Appleton, 148 Mas S 98; Smethurst v Barton Square Ind Con g Church, 148 Mas S 261; Parmenter v Coburn, 6 Gray (Mas S) 509; Burke S Savage, 13 Alien (Mas S) 408; Safford v Grout, 120 Mas S 20; Co M v Sumner, 124 Mas S 321; Brown v Leach, 107 Mas S 364; Lawton z/Chas e 108 Mas S 239; Paul v Bissett, Proper offer And in order to have such action on the part of the trial court reviewed, the bill must show that the evidence was offered at a proper time and rejected by the court : * and further, that the rejected evidence was materia L* 121 Mas S 170; Britton v Worcester County, 123 Mas S 309; Wood v Willis, no Mas S 454; Otisv Hadley, 112 Mas S 100; Morville v American Tract So C. 123 Mas S 129; Warren v Spencer Water Co, 143 Mas S 156 Mississipp I Harris v Newman, 5 Ho W (Mis S) 654 Nebraska McMillan v Malloy, 10 Neb 228; Sieber v Weiden, 17 Neb 582; Yates -v Kinney, 25 Neb 120 Nevad A State v Lewis, 20 Nev New York Ogden v Raymond, 5 Bos W ( N Y) 16 Ohio Summons v State, 5 Ohio St 325 Orego N Tucker v Constable, 16 Oregon 407 Pennsylvania Edwards v Tracy, 62 Pa St 379; Gratz v Gratz, 4 Rawle (Pa) 411; Stafford v Stafford, 27 Pa St 144; Wilson "v Homer, 59 Pa St 156; Snowden v Warder, 3 Rawle (Pa) 104; Williams v Williams, 34 Pa 81312; Lothrop z/ Wightman, 41 Pa St 297; Wilvurt v Sunbury, 28 Le g Int. (Pa) 357; Kiel v Co M, i W N C (Pa) 347 Texa S McAuley v Harris, 71 Tex 631; Beeks v Odom, 70 Tex 183; Cooksie v State, 26 Tex App 72; May v State, 25 Tex App 114 Ver Mont Ainsworth v Hutchins, 52 Vt 554- Written Evidenc e So where written evidence is excluded the bill of excep- tions should set out the instrument, with the grounds on which it was ex- cluded, if an Y Styles v Gray, 10 Tex 504; Morris v Runnells, 12 Tex 177; Frizzell v Johnson, 30 Tex 34; Watson v Mathews, 36 Tex 279 Depositio N Where a motion to sup- press parts of a deposition is overruled, ;he parts suppressed should be in- cluded in the bil L Indianapolis, etc, RCo v Anthony, 43 Ind 183 1 Texa S Litton v Thompson, 2 Tex Un Rep Ca S 580; Anderson v Anderson, 23 Tex 639 2 Pennsylvania Phelin v Ken- derdine, 20 Pa St 354 Texa S Rose v San Antonio, etc, RCo, 31 Tex 49; Harvey v Hill, 7 Tex 595; Styles v Gray, 10 Tex 507; King v Gray, 17 Tex 70; Baily v Trammell, 27 Tex 317; Burleson v Hancock, 28 Tex 84; Jones v Ca- vasos, 29 Tex 432; Brothers v Mun- dell, 60 Tex 242; Beeman v Jester, 62 Tex 433; Harris v Leavitt, 16 Tex 342; Dunham v Forbes, 25 Tex 23; Milliken v Smoot, 64 Tex 172; Red- den v Smith, 65 Tex 28; Griffin z.

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8 b UNDER MODERN Post Date: Tue, 29 Jul 2008 21:21:06 +0000
Chadwick, 44 Tex 406; Moss v Cam- eron, 66 Tex 413; Overstreet v Man- ning, 67 Tex 664; Pridham v Wed- dington, 74 Tex 356; Fox v Brady, i Tex Civ App 592; Counts v State, 19 Tex App 450; Davis v State, 14 Tex App 654; Jobe v Ollre, 80 Tex 188 What must be Brought u P The ap- pellant must bring up enough in the bill of exceptions to show the rele- vancy or materiality of the evidence rejecte d Jones v Dyer, 20 Ala 373; Dejarnette v Co M, 75 Va 868; Lang- horne v Co M, 76 Va 1012 Record Affecting Titl e Where the in- strument excluded is a record affecting a title, it should be set out at full length in the bil L Lee v Mound Sta- tion, 118 111 304 Mesne Conveyanc e When objections are sustained to one of several mesne conveyances through which appellant sought to connect himself with the sovereignty of the soil, it is the better practice to set forth the subsequent connecting links in the chain of title, or to give in the bill their dates, con- tents, etc Bowles v Beal, 60 Tex Rejection of Expert Witnes S So where a witness is rejected as an expert be- cause not qualified, the bill should show the evidence upon which the de- cision rest S Campbell v Russell, 139 Mas S 278; Co M v Sturtivant, 117 Mas S 122; Perkins v, Stickney, 132 Mas S 217 Where Shown by Pleading S The bill is sufficient when it discloses facts suf- ficient to show that the court excluded competent testimony where its mate- riality or relevancy appears from the pleading S Fox v Sturm, 21 Tex 406; Litton v Thompson, 2 Tex Un Rep Ca S 578 Cross-examinatio N It must appear in b QUESTION S So where the objection to a question asked a witness is sustained, the substance of the answer expected should be incorporated in the bill, 1 which must also show the character of the evidence previously put i N* 9 Admission of Evidence over Objectio N Where error is alleged in the action of the trial court in admitting testimony over objec- tion, the exceptant should incorporate into his bill of exceptions the evidence so admitte d 3 Surrounding Fact S And all the facts and circumstances affecting the legality of its admission must be state d 4 Previous Testimon Y Sufficient of the testimony previously given to show that the evidence questioned could not be admissible under any state of facts should be include d 5 the bill of exceptions that evidence given on cross-examination related to a matter material to the issue ; otherwise the appellate court will not reverse for refusal to hear evidence to contradict a witness whose testimony is offered to rebut such evidenc e Phelin v Kenderdine, 20 Pa St 354 1 Illinoi S Huftalin z/Misne RyoIl L 55; Miller v Houcke, 2 111 501; Hays v Smith, 4 111 427; Russell v White- side, 5 111 7 KentucKy Tipper v Co M, i Mete (Ky) 9; Nichols v Co M, n Bush (Ky) 575; Chrystal v Co M, 9 Bush (Ky) 670 Maine Grant v Libby, 71 Me 427; Noyes v Gilman, 71 Me 394 Massachusett S Bonino v Caledonio, 144 Mas S 299; Cecconi v Rodden, 147 Mas S 164; Crowley v Appleton, 148 Mas S 98; Gilfillan v Mawhinney, 149 Mas S 264 Missour I State v Leland, 82 Mo 260 Texa S King v Gray, 17 Tex 62; Mathews v State, 44 Tex 376; Haney v Crane, 65 Tex 98; Tucker v Smith, 68 Tex 478; Beeks v Odom, 70 Tex 186; McAuley v Harris, 71 Tex 639; Gulf, etc, RCo v Locker, 78 Tex 279; Cheek v Herndon, 82 Tex 151; McKay v Overton, 65 Tex 82; Martin- Brown Co v Waniscott, 66 Tex 131; Still v Focke, 66 Tex 715; Interna- tional, etc, RCo -v Leak, 64 Tex 656 VirginiaStoneman v Co M, 25 Gratt ( Va)887 2 Sire v Ellithorpe Air Brake Co, 137 U S 579 Where Question should be Show N So the bill should show the question asked where it is claimed that the answer is not responsiv e Missouri Pa C RCo v Jarrard, 65 Tex 560 Reasons of Trial Judg e And where leading questions are allowed over objection, the reasons of the judge therefor should appear by the bil L Davis v State, 43 Tex 189 3 Alabama Burns v State, 49 Ala 370 New Jerse Y State v Wheeler, 44 N J L 88 Pennsylvania Snowden v War- der, 3 Rawle (Pa) 101; Howard v Murphy, 23 Pa St 173; Stafford v Stafford, 27 Pa St 144; Graff v Bar- rett. 29 Pa St 477; Sipes v Mann, 39 Pa St 414; Aiken v Stewart, 63 Pa St 30; Sorg v First German, etc, Con g, 63 Pa St 156 Recor d So the admission of a rec- ord in evidence should, where alleged as error, be shown by the bil L Bone v McGinley, 7 How (Mis S) 671 4 Indiana Mitchell v Dibble, 14 Ind 526 5 Massachusett S Parmenter -v Co- burn, 6 Gray (Mas S) 509; Fuller v Ruby, 10 Gray (Mas S) 285; Currier v Silloway, i Allen (Mas S) 19; Burg- hardt v Van Deusen,4 Allen (Mas S) 374; Kingman v Tirrell, n Allen (Mas S) 97; Howe v Ray, 113 Mas S 88; Hopkins -v Alley, 120 Mas S 223; Co M -v Collins, 16 Gray (Mas S) 29; Merritt v Morse, 108 Mas S 270; Hackett v King, 8 Allen (Mas S) 144; Earle v Earle, n Allen (Mas S) i; Witcher z/ McLaughlin, 115 Mas S 167; Ghenn v Provincetown, 105 Mas S 313; Jones v Smith, 121 Mas S 15; Higgins v Andrews, 121 Mas S 293; Co M v Sargent, 129 Mas S 115; Co M v Wunsch, 129 Mas S 477; Chapin v Haley, 133 Mas S 127; Potter v Bald- 10 Incorporation of Documentary Evidence by Reference A AT COMMON LA W Under common-law practice documents properly a part of the bill of exceptions were required to be written out therein at full length; 1 annexation as exhibits, or a reference thereto elsewhere in the record, was insufficient. 8 b UNDER MODERN PRACTIC e Under modern practice, however, it is generally sufficient to identify the document by a proper reference in the bill of exceptions, marking the place where it should be incorporated by the words, " [Clerk, here insert].

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As ju- dicial records can Post Date: Tue, 29 Jul 2008 21:01:53 +0000
" 3 win, 133 Mas S 427; Co M v Keating, 133 Mas S 572; Penn Mut L In S Co v Crane, 134 Mas S 56; O'Reilly v Duffy, 105 Mas S 243; Co M -v Jen- nings, 107 Mas S 488; Woodard v Eastman, 118 Mas S 403; Jones v Smith, 121 Mas S 15; Morris v Far- rington, 133 Mas S 466; Cowdrey v Woburn, 136 Mas S 409; Co M v Sal- mon, 136 Mas S 431; Liverpool Wharf v Prescott, 4 Allen (Mas S) 22; John- son v Parsons, 140 Mas S 173; Wilson v Lawrence, 139 Mas S 318; Moody v Sabin, 9 Cus H (Mas S) 505; Packer v Lockman, 115 Mas S 72; Sweetser v Bates, 117 Mas S 466 Specific Ite M Where the admissi- bilityof a specific item of evidence is alleged as error, and it is stated in the bill that the evidence with that offered tends to prove the issue, no further evidence need be set out to raise that questio N Nason v Letz, 73 111 372 Immaterialit Y Where evidence is admitted over objections the remain- ing evidence in the cause should be embodied, so that the immateriality of the admitted evidence may be clearly see N Otherwise it will be presumed correctly admitte d Olive v Lewis, 45 Mis S 203 1 Huff v Gilbert, 4 Blackf (Ind) 19; Doe z/ Makepeace, 8 Blackf (Ind) 575; Irwin v Smith, 72 Ind 482 Leaving a blank in the bill, with the words " here insert," accompanied by a reference to the written document, was not sufficient. Vincennes Uni- versity v Embree, 7 Blackf (Ind) 461 Only Papers on Fil e Documentary evidence to be made part of the bill of exceptions must be in court or on fil e The judge has no authority to order the inclusion otherwise, merely on the affidavit of a party or his counsel that the same papers were offered in evi- denc e Emerson v Clark, 3 111 489 2 Indiana Huff v Gilbert, 4 Blackf (Ind) 19; Spears v Clark, 6 Blackf (Ind) 167; Livingood v Livingood, 6 Blackf (Ind) 268; Vincennes Uni- versity v Embree, 7 Blackf (Ind)4i; Doe v Makepeace, 8 Blackf (Ind) 575; Mills v Simmonds, 10 Ind 464; Irwin v Smith, 72 Ind 482; Stratton v Ken- nard, 74 Ind 304; Banks v Brooks, 4 Blackf (Ind) 485 Maine Wyman v Wood, 25 Me 438; Webster v Folsom, 58 Me 230 3 Alabama Quigley v Campbell, 12 Ala 58; Pearce v Clements, 73 Ala 256; Decatur Branch Bank v Moseley, 19 Ala 222; Stodder v Grant, 28 Ala 416; Bradley v Andress, 30 Ala 80; Farmer v Wilson, 34 Ala 75- Arkansa S Stirman v Cravens, 2g Ark 548; Taylor v Spears, 8 Ark 429; Keith v Herschberg Optical Co, 48 Ark 138 California Fish v Benson, 71Cal428; Nash v Harris, 57Cal242: Walsh v Hutchings, 60Cal228; Piper v Centinela Land Co, 56Cal173; John- son v Muir, 43Cal542 Indiana Shimer v Butler Uni- versity, 87 Ind 218; State v Peru, etc, RCo, 44 Ind 350; Greens- burgh, etc, Turnpike Co v Sidener, 40 Ind 424; Haddon v Haddon, 42 Ind 378; Aurora F In S Co v John- son, 46 Ind 315; Cosgrove v Cosby, 86 Ind 51; Stratton z Kennard, 74 Ind 302; Sanders v Farrell, 83 Ind 28; Endsley v State, 76 Ind 467; Goodwine -v Crane, 41 Ind 335; Irwin v Smith, 72 Ind 488; Kesler v Myers, 41 Ind 543; Sidener v Davis, 69 Ind 336; Burdick v Hunt, 43 Ind 381; Harman v State, 22 Ind 331; Clay v Clark, 76 Ind 161; Cincinnati, etc, RCo v Butler, 103 Ind 31 Iowa Humphry v Burge, i Greene (Iowa) 224; Reed v Hubbard, i Greene (Iowa) 153; Johnston v McPherran, 81 Iowa 230; Joy v Bitzer, 77 Iowa 73; Hampton v Moorhead, 62 Iowa 91; State v Jones, n Iowa n; Mc- Oral Matter S But this practice does not extend to oral matters or oral evidence, which must invariably be incorporated in the bill itself 1 C SKELETON BIL L Such a bill is termed a skeleton bill, z and is framed by omitting documentary evidence,depositions,instructions, written motions, etc, and instructing the clerk to insert them in making up the transcript of the recor d 3 The documents so re- ferred to become, for purpose of review on appeal, a part of the bill of exception S 4 Carthy v Watrous, 69 Iowa 260; Lyons v Thompson, 16 Iowa 62; Manson v Ware, 63 Iowa 345; Miller v Chicago, etc, RCo, 70 Iowa 302 KentucKy Walrath v Viley, I Bush (Ky) 266 Mississipp I Wright v Alabama Bank, 6 Smed M (Mis S) 251; Rankin v Holloway, 3 Smed M (Mis S) 620 Missour I Pitkin v Shacklett, 106 Mo 574; Williams v Webb (Mo, 1895), 29 S W Rep 998 Ohio Kerr v Burns, 12 Cin e L Bul L (Ohio) 68 Orego N Morrison v Crawford, 7 Oregon 472; Oregonian RCo v Wright, 10 Oregon 162 " Where the paper to constitute a part of the bill is not incorporated into the body it must be annexed to it, or so marked by letters, numbers, or other means of identification men- tioned in the bill as to leave no doubt, when found in the record, that it is the one referred t O" Leftwich v Lecanu, 4 Wal L (U S) 187 Direction of Clerk to Insert. As ju- dicial records can only be made by order of the court, and not by order of counsel or voluntary action of the clerk, U S v Gamble, 10 Mo 459; Christy v Myers, 21 Mo 112; Blount v Zink, 55 Mo 455; Jefferson City v Opel, 67 Mo 394; Ober v Indianapolis, etc, RCo, 13 Mo App 84; the clerk is not authorized to copy into the bill any instrument not called for by the express language of the bill of exceptions, Roberts v Bart- lett, 26 Mo App 611; Morrison v Lehew, 17 Mo App 635; Swift v Brumfield, 76 Ind 472; Kesler v Myers, 41 Ind 543; Carver v Carver, 44 Ind 265; Aurora F In S Co v Johnson, 46 Ind 315; Lowery v Carver, 104 Ind 447; Columbus, etc, RCo v Griffin, 45 Ind 369; Hopkins v Greensburgh, etc, Turnpike C O Exhibit S And in Baltimore, etc, RCo v Barnum, 79 Ind 261, it was said that unless a bill of exceptions contains the directions "here insert," the clerk is not authorized by the court to copy into the transcript exhibits annexed by him to the bill of exceptions after the signature of the judg e Reporter's Manuscript S Consequent- ly, where no place is indicated by the appropriate words for the insertion of the longhand manuscript of the re- porter, the clerk has no authority to insert it.

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