Taylor v. St. Paul's Universalist Church

Wheeler, C. J.

The plaintiff filed with the commissioner his motion to correct the finding and award, and each of the parties filed excerpts of what purported to be a copy of some portions of the evidence.

These excerpts were not certified and the commissioner denied the motion, as we understand his ruling, for the reason that the determination of whether the excerpts were a part of the evidence would make it necessary for him to compare them with the official transcript, which he was of the opinion was not under our practice his duty.

Presumably the commissioner denied the motion upon the ground that the excerpts filed were not certified to be excerpts from the official transcript of the evidence. The ruling was correct. The most approved practice before the commissioner is to require purported excerpts from the evidence, or the entire transcript of the evidence attached to motions to correct when filed with him, to be certified by the secretary to the commissioner or the stenographer who made the excerpts or transcript for the commissioner. He will thus have before him proper evidence of their trustworthiness, in reliance upon which he can certify them to the Superior Court, as he is required to do. This practice is a reasonable one, and the failure to have had these excerpts thus certified fully justified the ruling. After the appeal had been taken to the Superior Court and the reasons of appeal filed, the commissioner certified to that court a copy of the transcript of all of the evidence taken in the case before him. Thereupon the defendants moved that this be stricken from the files and the court granted the motion. There does not appear in the record anything to indicate the purpose or necessity of the certification of all of the evidence, and the Superior Court was not in error in granting the motion striking, it from the files. Thereafter the plaintiff-appellant moved the court that it direct the commissioner to certify and file in the court the transcripts of the evidence filed with him by the parties, together with such other evidence as might seem to him to be relevant and material to the issues arising on the motion to correct.

The court ruled that the commissioner had not passed upon the merits of plaintiff’s former motion, but denied the motion because the parties had not filed proper transcripts, and thereupon ordered him to file in the court the excerpts of the evidence originally filed with him. The motion to correct could not be determined on the merits unless the excerpts from the evidence thus filed with the commissioner and certified by him were before the court. The court was in error in not directing the commissioner to cause the parties to have these excerpts properly certified, and then to himself certify and file them in court. The court should also have directed the commissioner to certify and file any other evidence from the transcript which he deemed relevant and material to the issues arising on the motion to correct. This might have required the commissioner to go through the transcript of the evidence with care; his duty is similar to that of the Superior Court judge upon certifying excerpts from the evidence on a motion to correct. It is his duty to also certify any other evidence relevant and material to the motion to correct which the parties have not caused to be certified and filed with him.

In the rare case the matters involved may require a consideration of the entire evidence, or the parts of the evidence which are relevant and material may be so inextricably involved with the rest of the evidence as to make it impracticable for the commissioner to try to separate them. In that case iUwould be proper for him to certify the entire evidence, or all of it which was so inextricably involved.

After the court had ordered the commissioner to file these uncertified excerpts and he had filed them in accordance with that order, counsel for the plaintiff moved that the court return the excerpts to the commissioner with instruction to certify them and return them to the court. The motion should have been granted; the commissioner had it within his power to require the parties filing these excerpts to have had them certified. So far as the record discloses, the court did not rule upon the motion. The only evidence before the Superior Court, for the purposes of the motion to correct, was the excerpts which the parties had filed with the commissioner without having had them certified in accordance with approved practice. In its rul ing upon the appeal from the commissioner, the court said that the evidence upon the motion to correct was not properly before it, “and even if it may be so considered, the finding should not be materially corrected.”

We cannot consider the errors predicated upon the motion to correct without having before us these excerpts duly certified that they are in fact correct transcripts from the evidence, nor without having before us any other evidence which the commissioner deems relevant and material to the motion to correct. Nor do we think the trial court, without these, was in a position to properly determine this motion.

There is error; the cause is remanded with direction to the Superior Court to return these excerpts to the commissioner with direction to cause the parties to have them duly certified and then himself to certify and file them in the Superior Court, together with a certified transcript of any other evidence deemed by him relevant and material to the motion to correct, and thereupon to determine the motion to correct upon the evidence so certified and filed in court, and the other questions arising on the appeal.

In this opinion the other judges concurred.