Nicholson Coal Mining Co. v. Moulden

Court of Appeals of Kentucky

Nicholson Coal Mining Co. v. Moulden

128 S.W. 1061, 138 Ky. 626, 1910 Ky. LEXIS 111

DecidedJune 10, 1910

StatusPublished

This text of 128 S.W. 1061 (Nicholson Coal Mining Co. v. Moulden) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Nicholson Coal Mining Co. v. Moulden, 128 S.W. 1061, 138 Ky. 626, 1910 Ky. LEXIS 111 (Ky. Ct. App. 1910).

Pincite

Opinion

[627]*627Opinion of the Court by

Chief Justice Barker—

Overruling motion.

This case comes out on the motion of appellee to withdraw the bill of exceptions for the purpose of correction in the court below. There were certain portions of the mining laws of Tennessee read to the jury by a witness, who was put on the stand for the purpose of proving the laws of that state. It appears to have been agreed that the stenographer need not write in shorthand so much of the law as was read to the jury by the witness, but might after-wards copy what had been read into the transcript. It is now claimed that, in undertaking to carry out this agreement, the stenographer copied parts of the law not read by the witness. The correctness of this is not admitted by the appellant, and the affidavit of the trial judge, filed in support of the motion, shows that he has no independent recollection of what was read; neither has the stenographer. '

We'cannot give our consent to the proposition that appellee may now withdraw the bill of exceptions for the purpose, in part, at least, of making a new bill. If the matter were merely a clerical error, such as a mistake in copying a part of the record, the motion would prevail, because the record itself would correct the error of the clerk or stenographer. But that is not the question we have here. To decide now, from mere memory, what parts of the book were read by the witness, would be to make a new bill of exceptions to that extent. And if we suppose that the trial judge would sign such a correction, and the appellant did not agree to it, then it would be forced to get up a bystanders’ bill to the extent of the correction. All of this would take place long [628]*628after the time when a bill of exceptions could lawfully be made up by either party. It was the duty of the parties to see that the bill of exceptions was correctly made up before it was signed by the judge. The same reasoning applies to correcting one sentence copied from the book of mining laws read by the witness. It is now claimed the stenographer made a mistake in transcribing his notes, and inserted the word “not” in the sentence where it had no place. To- correct this now would simply be to make a correction from the memory of the stenográpher as to whether the word “not” was used by the witness, which, as said before, cannot be. done.

For these reasons, the motion to withdraw the bill of exceptions for correction is overruled.

Free access — add to your briefcase to read the full text and ask questions with AI

[627]*627Opinion of the Court by

Chief Justice Barker—

Overruling motion.

This case comes out on the motion of appellee to withdraw the bill of exceptions for the purpose of correction in the court below. There were certain portions of the mining laws of Tennessee read to the jury by a witness, who was put on the stand for the purpose of proving the laws of that state. It appears to have been agreed that the stenographer need not write in shorthand so much of the law as was read to the jury by the witness, but might after-wards copy what had been read into the transcript. It is now claimed that, in undertaking to carry out this agreement, the stenographer copied parts of the law not read by the witness. The correctness of this is not admitted by the appellant, and the affidavit of the trial judge, filed in support of the motion, shows that he has no independent recollection of what was read; neither has the stenographer. '

We'cannot give our consent to the proposition that appellee may now withdraw the bill of exceptions for the purpose, in part, at least, of making a new bill. If the matter were merely a clerical error, such as a mistake in copying a part of the record, the motion would prevail, because the record itself would correct the error of the clerk or stenographer. But that is not the question we have here. To decide now, from mere memory, what parts of the book were read by the witness, would be to make a new bill of exceptions to that extent. And if we suppose that the trial judge would sign such a correction, and the appellant did not agree to it, then it would be forced to get up a bystanders’ bill to the extent of the correction. All of this would take place long [628]*628after the time when a bill of exceptions could lawfully be made up by either party. It was the duty of the parties to see that the bill of exceptions was correctly made up before it was signed by the judge. The same reasoning applies to correcting one sentence copied from the book of mining laws read by the witness. It is now claimed the stenographer made a mistake in transcribing his notes, and inserted the word “not” in the sentence where it had no place. To- correct this now would simply be to make a correction from the memory of the stenográpher as to whether the word “not” was used by the witness, which, as said before, cannot be. done.

For these reasons, the motion to withdraw the bill of exceptions for correction is overruled.

Cite This Page — Counsel Stack

Bluebook (online)

128 S.W. 1061, 138 Ky. 626, 1910 Ky. LEXIS 111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nicholson-coal-mining-co-v-moulden-kyctapp-1910.