Allen v. Byers

OPINION

BY THE COURT:

Submitted on motion of appellant for an order granting appellant leave to insert in the bill of exceptions and as a part of the same the amended petition which was tendered in the Court of Common Pleas on the 21st day of December, 1939, and that the stenographer be authorized and directed to make said amended petition now on file with the original papers, a part of said bill of exceptions. Extended briefs are filed for and against the motion.

It 'is our desire that the bill of exceptions fully exemplify the record as it was made up in the trial court, but we are without opportunity and therefore have not the ability to determine whether or not the amended petition was properly offered and accepted as evidence in the trial court. We can not, therefore, direct the stenographer to incorporate the amended petition into and make it a part of the bill of exceptions.

Obviously the trial judge is the final arbiter of what the bill of exceptions shall consist. If in the judgment of the trial court, the amended petition should be incorporated in the Bill, it may be done.

We, therefore, refer the Bill to the trial Judge for diminution in accord with the motion if proper to be made; otherwise the Bill may be returned as is.

HORNBECK, PJ., GEIGER & BARNES, JJ., concur.