State v. Pansey

ON MOTION TO STRIKE

OPINION This is a motion for an order striking from the record on appeal volume two thereof and parts of volume one thereof. The motion is made on the ground that said matters are not embraced in a bill of exceptions settled and certified as required by law. The parts of volume one excepted from the motion to strike, constitute the record proper, or judgment roll, while the papers sought to be stricken therefrom form no part of the record unless properly contained in a duly settled and certified bill of exceptions. To volume two is attached the following certificate:

"I, Margaret Hinson, do hereby certify that I am now one of the duly appointed, qualified and acting court reporters of the Eighth Judicial District Court of the State of Nevada, in and for the County of Clark, and was such at all times herein mentioned, and that on the 26th day of May, 1941, I was duly sworn by Hon. George E. Marshall, Judge of the above-entitled court, to report all testimony and proceedings in the above-entitled action, and I further certify that the foregoing 201 pages comprise a full, true and correct transcript of my shorthand notes taken upon the trial of said action, of all the testimony offered and received, objections and exceptions of counsel as to the reception of evidence, statements and rulings of the court thereon, and all matters to which the same relate.

"Dated this 9th day of August, 1941.

"Margaret Hinson, Court Reporter."

The state contends that it does not constitute a bill of exceptions because it is not settled and signed by the judge of the court as required by section 11081 N.C.L. But it was settled and signed by the judge on September 4, 1941, as appears from his certificate annexed thereto, and was filed in the action September 8, 1941, with volume one, to which is annexed a similar certificate of the judge.

1, 2. It is also contended that it should be stricken because it is not attached to the record in conformity with paragraph 9 of sec. 11061. While this is a duty imposed on the clerk, an appellant ought not to be penalized because the clerk fails to so attach it. There can be no objection to a transcript of the proceeding, containing all of the evidence, being settled as a bill of exceptions. This is entirely within the discretion of the trial judge in any given case.

3. Does the fact that the judge also settled and signed volume one, which contains a number of papers in addition to the judgment roll, as a bill of exceptions also save such papers from the motion to strike? The judgment roll and bill of exceptions should not be jumbled together in such a manner. It is a bad practice. As said in State of Nevada v. Huff, 11 Nev. 17: "A bill of exceptions is a record, and a very important record. The only mode by which it can be authenticated is the signature of the judge; and when so authenticated, it receives a very high degree of credit. It ought not therefore to be composed of loose and scattered papers, but should be complete in itself, with a formal beginning and ending, so that it may be known where it begins and where it ends. * * *" 4. However, we must content ourselves with calling attention to the objectionable character of such a practice. The judge's signature and certificate of settlement give such papers the force and effect of a bill of exceptions, and we are not authorized to strike anything from it. Ryan v. Landis, 58 Nev. 253,74 P.2d 1179, 75 P.2d 734.

5. In respondent's answering brief on this motion is contained an affidavit of the district attorney of Clark County in which it is averred that the purported copy of the transcript on appeal served on respondent contained no copy of the order of settlement of the district judge, and that respondent had no knowledge of the fact, if such is a fact, that said order was incorporated in the original transcript on appeal, until the service upon it of appellant's answering brief. In this regard it is contended that rule XIII, par. 3, requires that a copy of the transcript be served upon the opposite party, and that the bill of exceptions should be stricken because failure to serve a substantially correct copy is equivalent to want of service. Even if this is so, it is no cause to strike the bill of exceptions, the motion for which is put on the ground that such bill was not settled and certified as required by law. The motion to strike should be denied in its entirety.

It is so ordered.