Sener, C. J.
This case was an action at law upon which a judgment was rendered by the first district court held in and for the county of Laramie at its May term, 1878, and is here now for consideration — not on its merits, but on a motion to dismiss — which was argued and allowed at the last regular term of this court, but afterwards, upon application of the plaintiff in error, a re-argument of the motion to dismiss was allowed, and now we are first to consider the motion of the defendants in error to dismiss, because the record as brought here shows no bill of exceptions.
The necessity of a bill of exceptions to bring a judgment into this court properly for review, in order to reverse, modify or vacate it if this court then shall seem to have been in error requiring it to do so, repeatedly ruled on in this court, it is only necessary to refer to the following syllabus of reported cases, 1 Wyoming, to show the nature and extent of these rulings.
After the motion for a new trial has been made and overruled by the court below and an exception taken thereto, such party must have his bill, containing all exceptions together with a motion for a new trial, signed or allowed by the presiding judge of the court below. Murrin v. Ulman, in 1 Wyo., 36.
If the plaintiff in error has not proceeded in accordance with the foregoing rules, it is correct practice for the defendant in error to move the court to dismiss the proceedings in error. Id.
In proceedings in error, the record of the court below must show that a bill of exceptions, containing the exceptions upon which the plaintiff in error relies, was duly made up and signed- by the judge of said court within the time limited by statute. Greer v. Murrin, 37.
After a motion for a new trial has been made and overruled by the court below and an exception taken thereto, such party must have his bill containing all exceptions upon which he relies, together with the motion for a new trial, signed or allowed by the judge of the court below. Id.
[196]*196If the plaintiff in error has not proceeded in accordance with the foregoing rules, it is the correct practice for the defendant in error, to move the court to dismiss the proceedings in error. Id.
These decisions were rendered nearly nine years ago, and are to be sustained as precedents because conformable to the organic law of the territory and its code, and because they are in harmony with the decision of the United States supreme court, in Thompson v. Riggs, 5th Wallace, wherein Judge Clifford says for the court: “Settled practice in this court is that neither the rulings of the court in admitting or rejecting evidence can be brought here in any other way than by a bill of exceptions.”
But counsel, in arguing for plaintiff in error and against the motion to dismiss, maintained that rule 5 of this court, which requires a bill of exceptions, in which all exceptions, and the motion for a new trial shall be made and embraced,' to be essential to proceedings here, is in conflict with the organic act of the territory, its code and subsequent session acts. To this it seems to us only necessary to say:
I. That the necessity of always applying for a new trial in the same court is to be found in the facts that the laws of the territory, civil 'and criminal, make provision for and point out with great exactness, all the methods of such applications, and further provide how courts which have heard cases shall re-hear them. The organic act, and the laws of the territory, all alike contemplate a resort to an appellate court only when every effort has failed in the lower court, and then the party coming into the appellate court or court in error, must come under such regulations as are provided by law, not inconsistent with the organic act of the territory, and it will presently be seen that by force of the statute law of the territory the rules of this court not inconsistent with the laws of this territory, and they are not, are given all the force of statute law. They deprive no man of his right, certainly at this late day. They only-point out the course to be pursued by him while asserting [197]*197his rights. In doing this in a law forum, he surely must always do it according to law.
II. That every party in a lower court is required to except to every thing done there which he deems prejudicial to his rights, and to save the benefit of these exceptions and objections, including the motion for a new trial; he is required by the code and subsequent laws, as well as by rule 5 of this court, not only reasonably to except, but to preserve such exceptions and objections he must resort to a bill of exceptions in which they shall all be set forth and shown, the same to be signed and allowed by the judge conducting the trial.' Rule 5, therefore, of this court, is in the very line of this court’s duty to prescribe,- and was not intended to work an injury, but to point out in practice, what would be required of all who came here seeking to set aside decrees or judgments of the court below.
The general laws of Wyoming,- section 4, chapter 106, page 645, make it not permissive to this court to provide rules for perfecting and conducting proceedings in error and by appeal, but mandatory upon it to do so, and these rules when framed, are by the legislation given all the force of .law, when not inconsistent with the organic act of the territory or its laws passed in pursuance thereof, for it is expressly declared by statute — General Laws of Wyoming, chapter 106, section 4, page 545, — that when not inconsistent with the organic act and laws of the territory that they are, when promulgated, to be as binding as legislative enactments upon the courts and upon the parties practicing and having business therein. Language could not be fuller or of greater force in establishing the validity of these rules.
But it was further contended by counsel for plaintiff in error that rule 5 of this court, which provides that “no case will be heard in court unless a motion for a new trial shall have been made in the court below in which all matters of error and exceptions have been presented, argued, and the motion overruled, and exceptions taken to the over-rulings of said motion, all to be embraced in the bill of [198]*198exceptions,” is contrary to the laws of this territory, because by section 10 of the act of December 15, 1877, in relation to the appointment of an official stenographer, it is provided that “any transcription herein provided for shall, when by said stenographer certified correct as aforesaid and as paid for, be filed among the papers of the case, action or matter in which the same was tried as investigated, and such transcript so filed, shall prima facie, be deemed to be and taken as a .correct statement of such testimony, proceedings or the investigation and the record thereof.
And because of the words “that testimony so .taken shall prima facie be the records,” &c., it is claimed that no bills of exceptions are necessary to bring cases here by writ of error, and that in such cases the stenographer’s transcript shall have in this court the force of a bill of exceptions allowed and signed by a judge below.
Thus to hold, would be in effect to say, that section 308 of the General Laws of Wyoming, page 71, is repealed.
This is not done in terms, certainly, nor do we think the legislature meant to do so by implication.
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Sener, C. J.
This case was an action at law upon which a judgment was rendered by the first district court held in and for the county of Laramie at its May term, 1878, and is here now for consideration — not on its merits, but on a motion to dismiss — which was argued and allowed at the last regular term of this court, but afterwards, upon application of the plaintiff in error, a re-argument of the motion to dismiss was allowed, and now we are first to consider the motion of the defendants in error to dismiss, because the record as brought here shows no bill of exceptions.
The necessity of a bill of exceptions to bring a judgment into this court properly for review, in order to reverse, modify or vacate it if this court then shall seem to have been in error requiring it to do so, repeatedly ruled on in this court, it is only necessary to refer to the following syllabus of reported cases, 1 Wyoming, to show the nature and extent of these rulings.
After the motion for a new trial has been made and overruled by the court below and an exception taken thereto, such party must have his bill, containing all exceptions together with a motion for a new trial, signed or allowed by the presiding judge of the court below. Murrin v. Ulman, in 1 Wyo., 36.
If the plaintiff in error has not proceeded in accordance with the foregoing rules, it is correct practice for the defendant in error to move the court to dismiss the proceedings in error. Id.
In proceedings in error, the record of the court below must show that a bill of exceptions, containing the exceptions upon which the plaintiff in error relies, was duly made up and signed- by the judge of said court within the time limited by statute. Greer v. Murrin, 37.
After a motion for a new trial has been made and overruled by the court below and an exception taken thereto, such party must have his bill containing all exceptions upon which he relies, together with the motion for a new trial, signed or allowed by the judge of the court below. Id.
[196]*196If the plaintiff in error has not proceeded in accordance with the foregoing rules, it is the correct practice for the defendant in error, to move the court to dismiss the proceedings in error. Id.
These decisions were rendered nearly nine years ago, and are to be sustained as precedents because conformable to the organic law of the territory and its code, and because they are in harmony with the decision of the United States supreme court, in Thompson v. Riggs, 5th Wallace, wherein Judge Clifford says for the court: “Settled practice in this court is that neither the rulings of the court in admitting or rejecting evidence can be brought here in any other way than by a bill of exceptions.”
But counsel, in arguing for plaintiff in error and against the motion to dismiss, maintained that rule 5 of this court, which requires a bill of exceptions, in which all exceptions, and the motion for a new trial shall be made and embraced,' to be essential to proceedings here, is in conflict with the organic act of the territory, its code and subsequent session acts. To this it seems to us only necessary to say:
I. That the necessity of always applying for a new trial in the same court is to be found in the facts that the laws of the territory, civil 'and criminal, make provision for and point out with great exactness, all the methods of such applications, and further provide how courts which have heard cases shall re-hear them. The organic act, and the laws of the territory, all alike contemplate a resort to an appellate court only when every effort has failed in the lower court, and then the party coming into the appellate court or court in error, must come under such regulations as are provided by law, not inconsistent with the organic act of the territory, and it will presently be seen that by force of the statute law of the territory the rules of this court not inconsistent with the laws of this territory, and they are not, are given all the force of statute law. They deprive no man of his right, certainly at this late day. They only-point out the course to be pursued by him while asserting [197]*197his rights. In doing this in a law forum, he surely must always do it according to law.
II. That every party in a lower court is required to except to every thing done there which he deems prejudicial to his rights, and to save the benefit of these exceptions and objections, including the motion for a new trial; he is required by the code and subsequent laws, as well as by rule 5 of this court, not only reasonably to except, but to preserve such exceptions and objections he must resort to a bill of exceptions in which they shall all be set forth and shown, the same to be signed and allowed by the judge conducting the trial.' Rule 5, therefore, of this court, is in the very line of this court’s duty to prescribe,- and was not intended to work an injury, but to point out in practice, what would be required of all who came here seeking to set aside decrees or judgments of the court below.
The general laws of Wyoming,- section 4, chapter 106, page 645, make it not permissive to this court to provide rules for perfecting and conducting proceedings in error and by appeal, but mandatory upon it to do so, and these rules when framed, are by the legislation given all the force of .law, when not inconsistent with the organic act of the territory or its laws passed in pursuance thereof, for it is expressly declared by statute — General Laws of Wyoming, chapter 106, section 4, page 545, — that when not inconsistent with the organic act and laws of the territory that they are, when promulgated, to be as binding as legislative enactments upon the courts and upon the parties practicing and having business therein. Language could not be fuller or of greater force in establishing the validity of these rules.
But it was further contended by counsel for plaintiff in error that rule 5 of this court, which provides that “no case will be heard in court unless a motion for a new trial shall have been made in the court below in which all matters of error and exceptions have been presented, argued, and the motion overruled, and exceptions taken to the over-rulings of said motion, all to be embraced in the bill of [198]*198exceptions,” is contrary to the laws of this territory, because by section 10 of the act of December 15, 1877, in relation to the appointment of an official stenographer, it is provided that “any transcription herein provided for shall, when by said stenographer certified correct as aforesaid and as paid for, be filed among the papers of the case, action or matter in which the same was tried as investigated, and such transcript so filed, shall prima facie, be deemed to be and taken as a .correct statement of such testimony, proceedings or the investigation and the record thereof.
And because of the words “that testimony so .taken shall prima facie be the records,” &c., it is claimed that no bills of exceptions are necessary to bring cases here by writ of error, and that in such cases the stenographer’s transcript shall have in this court the force of a bill of exceptions allowed and signed by a judge below.
Thus to hold, would be in effect to say, that section 308 of the General Laws of Wyoming, page 71, is repealed.
This is not done in terms, certainly, nor do we think the legislature meant to do so by implication. The two statutes were made by the legislature, and evidently were not by the legislature thought to be inconsistent with each other. Nor does this court deem them inconsistent, or does it hold the first act repealed. By the stenographer’s act the testimony by him taken is prima facie correct; is it absolutely correct? By section.303, page 71, of the Géneral Laws of Wyoming, the bill of exceptions must certify the true evidence, true absolutely, not prima facie true, and so liable to be disproved; and this the court can do, we take it, by accepting the stenographer’s evidence as prima facie true, just as the statute declares, but not concluding it to use that evidence so reported as absolutely true. It shall retain its power on its motion to correct and certify what is true, or it can correct it on motion after notice to one or both of the parties to the suit, or it can allow the stenographer himself to correct if he has made errors, and it can do [199]*199this by consent or bringing bade witnesses before it, or in any manner that will accomplish right and justice.
To give to the stenographer’s notes absolute instead of mere prima fade verity in this court, would be to usurp one of the fundamental rights and powers of every court to say what was and what was not proved before it, when it is sought to impeach its judgments or decrees by proceedings in error or on appeal, a right that no court of last resort will ever hold to be repealed by implication, and no legislature, we think, will ever repeal in terms. Indeed, the legislature in passing this act was most careful in giving to the stenographer’s transcription just what we give it, prima fade verity, not absolutely verity. And if anything were needed to confirm us'in this view the persuasive if not binding force of Pomeroy v. The Bank of Indiana, 9th of Wallace, would surely be sufficient. There the court held that “the judge’s notes do not constitute a bill of exceptions. They are but the memoranda from which a formal bill may afterwards be drawn up, signed and sealed. Sealing being required by the Federal statute, and not by the law of this Territory.”
In this case there is no bill of exceptions, and for the foregoing reasons we decline to accept the stenographer’s transcription as a substitute therefor, or in lieu thereof; and, therefore, without the need of disposing of any other question raised by the motion to dismiss on the part of the defendant in error, we are of opinion to dismiss the proceedings in error, and to affirm the judgment of the court below, but without the five per cent, penalty allowed upon dilatory appeals.
Blair, J.
I quite agree with my brother, the Chief Justice, in the conclusion he has arrived at in this case; but I reason from a different stand-point.
He who searches either sacred or profane history to find more than one Job, will search in vain. From the time of the creation of man to this hour, no one, it is said, ever pos[200]*200sessed the patience of him. In that respect he stands without a peer. As to his occupation, the first volume of Wyoming Reports is silent. Of two things I feel morally certain. The first is, that had he lived in this age of the world’s history, and been honored with a seat on this bench, his fame as a man of inexhaustible patience would have been less. Second, men and women would not be so often admonished to profit by his example.
I am led to these reflections from the fact that, notwithstanding a rule of this court which has received the judicial sanction of a long list of illustrious predecessors, the wisdom of which has been so conclusively demonstrated by that able jurist, Kingman, Justice, in his opinion, delivered in the case of Wilson v. O’Brien, which rule in the most positive language declares that the court will not review alleged errors in the record, unless the motion for a new trial made by the court below is incorporated in a bill of exceptions duly and properly signed or allowed by the court rendering the judgment; yet strange as it may seem, we are urged if not importuned at every turn, and sometimes by those who breathed into it the breath of life, to wholly disregard it. This, so far as I am concerned, I cannot, will not do. But while I shall always be found defending it from all assaults, come from whatever quarter they may, I hope I shall be pardoned for saying, that I think that our moments of time are too precious, and life far too short, to be required at every term of this court to assign the same reasons for refusing to review cases improperly brought here. I concur.
Judgment affirmed.