Ryan v. Landis , 58 Nev. 253 ( 1938 )

Nowhere do the statutes give expressly to the trial court the power to strike from the bill of exceptions. If the trial court has this power it must be inferred. If the trial court does not have this power, it would seem that it should lodge in the supreme court, for there must be some procedure for the elimination of useless, redundant and irrelevant matter from a bill of exceptions. The power to strike seems to us to be inherent in the supreme court, from the very nature of its appellate powers. Moreover, it would seem to follow from, if it is not within, the purview of supreme court rules VII and VIII.

Wayne T. Wilson and Emerson J. Wilson, Attorneys for Appellants, did not file a brief on the motion to strike.

OPINION 1. This is a motion to strike portions of the record on appeal. An examination of the record reveals that the motion is addressed to parts of the bill of exceptions. Respondent Martha W. Landis claims that the matter objected to is immaterial and therefore has no place in a bill of exceptions. If, in fact, such matter was erroneously included in the bill of exceptions, we have no power to strike it.

2, 3. This court has no general or revisory power over a bill of exceptions. When settled in the manner and within the time prescribed by law, the bill of exceptions becomes a part of the record on appeal. It is, however, not subject to amendment in this court, except, in effect, in the single instance of a trial judge refusing to allow an exception in accordance with the facts. In that event the party aggrieved may petition the supreme court to prove the same and shall have the right so to do. And such exceptions as are allowed by said supreme court shall become a part of the record of the cause. Chapter 32, Stats. 1937, p. 64, sec. 31. The methods prescribed for settlement of a bill of exceptions are found in that chapter. See page 63, sec. 31 et seq.

4. In this case the method chosen for settlement was by the trial judge. His power in this respect conferred by said statute is general, limited only to the extent above mentioned. The logic of the statute is well expressed in Re Gates, 90 Cal. 257,27 P. 195, 196. The court said: "His familiarity [the trial judge] with the trial, and knowledge of what then took place, better qualify him than any other tribunal for determining how much of the evidence or other matter is necessary to explain the objection. This court cannot in advance of a hearing upon the appeal, determine whether any particular piece of evidence or other matter proposed as an amendment is necessary to explain the objection. A proper determination of that question would require an investigation of the whole case, including the pleadings and other evidence that had been admitted as well as the state of the trial at the time the objection was made."

As stated in Hyde v. Boyle, 86 Cal. 352, 24 P. 1059, 1060: "The duty and power of settling statements and bills of exceptions rest generally and properly in the judge of the trial court. This court can interfere with such statement or bill only in the cases provided by statute; and the only case thus provided is found in said section 652. But that section refers only to a case where the judge has ``refused to allow an exception.' It does not give this court jurisdiction to remodel a bill of exceptions generally by striking matter out of it, etc., as is prayed for in this petition."

See, also, Landers v. Landers, 82 Cal. 480, 23 P. 126; Vance v. Superior Court, 87 Cal. 390, 25 P. 500; Cox v. Delmas, 92 Cal. 652,28 P. 687.

The motion to strike portions of the record on appeal should be denied.

It is so ordered.