Brockman v. Ullom , 52 Nev. 263 ( 1930 )

This court has repeatedly held that the appellant making a motion for diminution of the record shall have an opportunity of correcting a defective record. We have been unable to find any case where this court has failed to afford the appellant such an opportunity since the enactment of Stats. 1923, p. 163, c. 97. In each case that has arisen in this court since the enactment of this statute, from the case of Shirk v. Palmer, 48 Nev. 449, to the case of Orleans Hornsilver Mining Company v. Le Champ D'Or French Gold Mining Company, just recently decided, the right has been afforded the appellant to correct any defect which may exist in the record.

If this court should hold that respondent can, on this motion, properly raise the objections to the inclusion of the documents mentioned in the record on appeal, then appellant submits, under the statutes of this state, the rules of court, and the decisions heretofore rendered by this court, she is entitled to have such documents considered by this court as a part of the bill of exceptions.

We are simply asking the court to allow us to correct clear omissions and inaccuracies in a bill of exceptions that has already been settled and allowed by the lower court, which was not the situation in most of the cases cited by respondent. The affidavits merely go to show that the record as settled and certified over six months ago is not correct and should now be amended, added to, etc., by this court, by bringing up papers not included in the original bill of exceptions. In any event, this court has no power to amend bills of exceptions. The utmost this court can do is to make appropriate orders to the trial judge. "Proposed amendments to bill of exceptions cannot be considered as part of record on appeal without a certificate by trial court, required by Statutes 1923, chap. 97, sec. 5." (Syll.) Water Co. v. Tonopah Belmont Dev. Co., 49 Nev. 172,241 P. 1079.

Here, inasmuch as the time has long since expired within which the trial court could have acted, the decision of this court in the case infra would seem conclusive: "We cannot order the amendment of a bill of exceptions after the time has expired within which such bill of exceptions should have been settled so as to bring into it evidence not incorporated therein." Caldwell v. Wedekind Mines Co., 50 Nev. 366; 261 P. 652.

OPINION This case is now before the court upon an application for an order for a diminution of the record pursuant to rule 7 of this court, so as to bring up an order of September 9, 1929, extending the time of plaintiff within which to serve and file objections to the allowance and settlement of the bill of exceptions, notice of intention to move for a new trial, and memorandum of errors and exceptions to be relied upon on motion for a new trial.

In support of the application there is filed an affidavit of one of the attorneys for appellant, stating that said papers are actually a part of the record in the case, and giving the date of the filing of each, and copies of said documents certified to by the clerk of the trial court as being true copies of the originals.

Counsel for respondent object to the application. They call attention to the fact that in their answering brief on the merits, filed on October 24, 1929, they objected to the consideration by this court of the evidence in the case because of the fact that the bill of exceptions does not contain a notice of the intention of the defendant to move for a new trial, and is otherwise defective.

It was thereafter that the motion now before us was made.

The papers now sought to be brought up are not embraced in the judgment roll proper and can only be brought into the record by being made a part of the bill of exceptions.

1. It is settled law in this state that documents which are not a part of the judgment roll proper can be considered only when incorporated in a bill of exceptions. Water Co. v. Tonopah Belmont Dev. Co., 49 Nev. 172, 241 P. 1079; Bowers v. Charleston Hill etc., 50 Nev. 99, 251 P. 721, 256 P. 1058.

It is insisted, however, by counsel for appellant that, in view of the well-settled policy of the law, as expressed in Orleans Hornsilver M. Co. v. Le Champ D'Or French G.M. Co., Ltd.,52 Nev. 85, 280 P. 887, that cases should be disposed of by this court on their merits, that we should grant the application. In this connection our attention is called to the order made in Shirk v. Palmer, 48 Nev. 449, 232 P. 1083, 236 P. 678,239 P. 1000.

A somewhat different situation is presented in this application than was presented in the case last mentioned, in that the papers sought to be brought up herein can only be considered when incorporated in a duly settled bill of exceptions, which this court can in no way correct or amend.

2. If the bill of exceptions can be corrected or amended at all it must be done by the trial court. Yori v. Cohn, 26 Nev. 228,65 P. 945, 67 P. 212; Bowers v. Beck et al., 2 Nev. 144; Elliott App. Proc., sec. 825, citing Harris v. Tomlinson,130 Ind. 426, 30 N.E. 214; Lefferts v. State, 49 N.J. Law, 26,6 A. 521; Martin v. St. Louis, etc., Co., 53 Ark. 250, 13 S.W. 765; Morse v. Woodworth, 155 Mass. 233, 27 N.E. 1010, 29 N.E. 525, and other cases.

Whether this court would, on application and showing, remand the bill of exceptions to the trial court for correction and amendment is a question we cannot now decide.

The application is denied, with leave to appellant to apply within fifteen days from service hereof for an order remanding the bill of exceptions for correction and amendment.