Louisville Bridge Co. v. Neafus

62 S.W. 2, 110 Ky. 571, 1901 Ky. LEXIS 104

Opinions

'Opinion of the court by

JUDGE DuRELLE

Affirming.

The record shows that the official reporter was directed to take down the testimony in the case. After á verdict had been rendered against appellant, and a motion for a new trial overruled'^ appellant tendered its bill of exceptions and transcript of testimony, which were laid over until January 20., 1900, for plaintiff’s counsel to examine same. On the 20th of January, an order was entered reciting that the official transcript of the official stenographer of the icourt of the testimony heard in the ease was1, examined by the court, approved, and made a part of the record. The order proceeds': “Thereupon came the defendant, and tendered its bill of exceptions herein, which was examined, approved, and signed, and ordered to be filed as part of the record herein, .and thereupon the defendant prayed an appeal,” etc. The transcript of testimony, upon examination, does not appear to be attested or identified by the trial judge. Upon the authority of Coal Co. v. Finley (Ky.) 32 S W., 477, (20 Ky. L. R. 1329) it is contended that the transcript though made a part oí the bill of exceptions, can not be considered by this court, because it is not attested or identified by the trial judge. In that case sections 4639, 4641, Kentucky 'Statutes, were considered, and it was held that: “In all civil actions, whether ordinary or equitable, where oral testimony is heard on the trial ,the testimony taken by the reporter under the direction of the court, etc., may be brought up without being copied, when attested or identified by the trial judge.” It is not necessary to decide whether such transcript could be considered, if made a. part of a proper bill of exceptions, without further identification than the certificate of the official reporter. This transcript of testimony is not before this court except as a part of what is called a “bill of exceptions,” and, while the order recites that the bill of exceptions which was presented to the court was signed and approved, what is copied as a bill of exceptions in this record does not appear to be either dated or signed by the judge. In City of Henderson v. Allen & Co., 10 Ky., Law Rep., 282, this exact question was presented. In the opinion by Judge Barbour, it is said: “It therefore follows that w'hat is now claimed to be the bill of exceptions is not the bill signed by the judge, or that, notwithstanding the recital in the order, the bill was' in fact not signed. Therefore, as upon the plaintiff’s pleadings, if sustained by the evidence, they were entitled to the judgment rendered it must be affirmed.” In Stanford v. Parker (Ky.) 15 S. W., 784, 12 Ky. L. R. 878 it was said, in an opinion by Judge Bennett, construing section 337 of the Civil Code of Practice: “What purports to be the evidence used on the trial is embraced in what is called a 'bill of exceptions,’ which is not signed by the judge. The 337th section of the Civil Code of Practice is imperative upon the judge to sign, bill of exceptions if he approves the same. Said bill of exceptions not having been signed, we can not consider the same. Consequently, there being no proof that we can consider as to the appellant’s title to the land in dispute, and his title thereto having been put in issue, the judgment dismissing his action must be affirmed.” Neither the instructions nor the evidence appear, except in this bill of exceptions, and we are constrained to the conclusion that we can not consider the errors relied on. There being, therefore, no bill of exceptions which we can consider, we must presume that the evidence was sufficient to authorize the judgment, as the pleadings support it. Donan v. Dorian’s Adm’r, 12 Ky. Law Rep., 291; Curran v. Taylor (Ky.) 18 S. W., 232; (13 Ky. L. R. 750) Johnson v. Hale, 13 Ky. Law Rep., 542; Quaid v. Cornwall, 13 Bush, 60; Tinsley v. White (Ky.) 54 S. W., 169. (21 L. R., 1151) The judgment is therefore affirmed.

GIBSON, MARSHALL & GIBSON, Attorneys eor appellant.

On January 19, 1900, counsel for appellant prepared and tendered a bill of exceptions and transcript of evidence herein to the judge who tried the ca$e, and moved the court to sign, approve and file the bill of exceptions and transcript of evidence. The court refused to sign or direct the bill and transcript to be filed until they had been .approved by counsel for appellee, but ordered them tendered and laid over until next day. On the next day the clerk handed the bill of exceptions and transcript of evidence to the court and informed it that appellee's counsel had no objection to them. The court then directed the clerk to file the same, which was done, and by oversight, the court failed to affix his signature to either the bill of exceptions or the report of evidence.

When the attention of the trial court was called to its failure to affix its signature to these papers, it promptly set the case for argument on a motion of appellant to have the bill of exceptions and report of evidence signed nunc pro tunc, as of January 20, 1900. When the motion came up for hearing the trial judge immediately agreed with appellant’s counsel that the omission to sign the hill and report of evidence was wholly the court’s fault, and it promptly signed both the bill of exceptions and the report of evidence nunc pro tunc, as of January 20, 1900, the same day on which they were filed in the lower court.

A supplemental record has been prepared, showing these facts, for the purpose of perfecting the appellant’s record in this court, and we believe the ends of justice require that the judgment affirming herein he withdrawn that the appellant be allowed to file the supplemental record tendered and the ease he reheard on its merits.

Appellant’s counsel did not see the brief for appellee, and had no intimation that anything was wrong with the record until a copy of the opinion of this court was received, affirming the case on the sole ground that the record was imperfect.

AUTHORITIES CITED.

Wisconsin Chair Co. v. Columbia Finance and Trust Co. 22 Rep., 1344; Washington Life Ins. Co. v. Menefee’s Executor, 21 Ky. Law Rep., 917; Doty, &c. v. Trustees Berea College, 12 Ky. Reporter, 964.

Field: A nutic pro tunc order filing a hill of exceptions, entered in the lower court after the affirmance on a judgment on appeal, can not be considered on a petition for rehearing.