Bracey-Welles Construction Co. v. Terry & Cambron

82 S.W. 846, 5 Indian Terr. 377, 1904 Indian Terr. LEXIS 42

• Court: Court Of Appeals Of Indian Territory
• Decided: October 19, 1904
• Status: Published

Opinion

Townsend, J.

The appellant has filed three assignments of error, as follows: “First. In overruling defendant’s motion for a rehearing. Second. In confirming the master’s report, and in granting a decree, upon the evidence offered by plaintiffs. Third. In finding that the Choctaw, Oklahoma & Gulf Railroad Company had been duly summoned as garnishee, and in ordering said company to pay the amount of the decree and costs forthwith into the hand of the clerk.”

The transcript of record was filed in this court December 31, 1901. On June 13, 1902, appellees filed an application for writ of certiorari to the clerk of the trial court to send up three affidavits made by the counsel both for appellant and appellees which were by the consent of counsel seen and heard by the court as proof on the motion for a rehearing filed herein. “That the said three affidavits are material in the consideration of this cause, because the order of the chancellor overruling appellant’s motion for a rehearing was based upon the statements contained in the said affidavits, and because it would'be impossible for this court to pass upon the question as to whether the chancellor, in the trial court, had abused his discretion in overruling the said motion for rehearing unless the said proof is made a part of the record for the consideration of this court.” On same day writ of certiorari issued by the clerk of this court as follows: “* * * it has been suggested by said appellees that there is a diminution of the record filed in this case, in this: that it does not contain the affidavits of J. A. Hale, P. D. Brewer, and S’. A. Wilkinson which were read as proof on the motion for a rehearing, and setting aside of the decree rendered herein by the trial court” — to the clerk of the Central District; and on same day said clerk of the Central District certified up the three affidavits mentioned. On July 10, 1902, motion to quash writ of certiorari, and all papers and pretended records brought up thereunder, first, because no notice was given to appellant or its attorney of the application for the writ: second) because the appellees were guilty of laches in applying for this writ; third, because affidavits were never filed in the lower court, and never became any part of the record.

By section 1273, Mansf. Dig. (section 775, Ind. Ter. St. 1899), it is provided: “Where either party conceives that the copy of the record is imperfect, the clerk of the Supreme Court shall, on his application, issue a certiorari, commanding the clerk of the inferior court to transmit to the Supreme Court a true copy of the omitted or imperfect part of the record, which part shall in general terms be described in the writ.” Under this section no notice of the application for the writ to the opposite party is required. No laches can be imputed, for the application can be made where either party conceives that the copy of the record is imperfect, and no time is fixed.. If the affidavits were seen and heard by the court, as proof, on the motion for rehearing, and by “consent of counsel,” they were a part of the record on the hearing of that motion, and hence the motion to quash will be denied.^ After reading the record in this cause, and the affidavits filed and considered by the court on the motion for rehearing, it is apparent that there is no merit in the assignments of error, or in their discussion by counsel for appellant in his brief. The proceedings were perfectly regular, and most of the delay seems attributable to the fact that appellant caused the case to be transferred to the equity docket.

Under the assignments of error, the chief complaint of appellant's counsel is that counsel for appellees did not proceed in the case as he desired; that, after all the parties to this suit had left the district, after the special master had moved away, and after the counsel for appellant himself had moved away, and after counsel for appellant had notified counsel for appellees that he was no longer employed in the case, and refused to accept service of notice to take depositions, and such service upon him would be void and of no force, as he was no longer attorney for appellant in the case; that when appellees proceed to take the deposition of one Smith by putting the notice in the office of the clerk, as under such conditions the law requires, and the garnishee had answered, and the special master made his report, and the case was regularly reached on the call of the equity docket and no exceptions had been taken to the report of the special master, and the court had confirmed the master’s report and rendered judgment — the counsel for appellant returns from his absence, “and is astounded to find that Smith’s deposition had been taken without notice, that the master has reported without notice, and a decree has been granted without notice. Will this snap judgment, this inequitable and unheard-of procedure, be tolerated in a court of equity, a court of conscience?” It appears from the affidavit of Mr. Brewer that the counsel for appellant has been re-employed in the case, and this accounts for the astounded condition he finds himself in. Mr. Brewer’s statement in his affidavit is as follows: “Mr. Wilkinson called Mr. Brewer to one side and informed him that he had recently been re-employed in the Bracey-Welles cases, and that he would probably move to set the judgments aside. Brewer asked him how long since his re-employment, and he stated that it was about three or four weeks ago. Brewer suggested to him that he had had ample time to notify us, and that we had received no indication from him that he had been re-employed. He said, ‘ Well, I might have done that, but I was expecting to come over before the docket was closed, and thought I would be here by the time the chancery docket was reached.' This was all the explanation he made of his negligence in the matter.” The alleged errors of procedure as to taking the deposition of Smith and as to the report of the special master should have been raised by proper motion and exceptions within the time allowed by law, but after judgment it is too late, when the alleged errors 'are the result of the counsel's own negligence.

We think the judgment of the court was correct, in refusing to grant a rehearing, and it is affirmed.

Gill, J., concurs.