Mitchell v. Gulf, Colorado & Sante Fe Railway Co.

OPINION ON MOTION.

KEY, Chief Justice.

— Having overruled appellees’ motion to strike out the statement of facts, and as that ruling involves a construction of that portion of the Act of the 31st Legislature regulating the appointment of official stenographers, and the method of making up and filing statements of facts, which relates to the latter subject, it is deemed proper to reduce our conclusions to writing.

Two grounds were assigned in the motion for striking out the statement of facts. These were: first, because it was not filed within the time permitted by law; and, second, because it did not state the facts proven in narrative form, but was composed largely of the stenographer’s notes giving questions and answers and remarks of counsel and the court on the admissibility of evidence.

I. As to the first question, the record shows that the District Court adjourned on the 29th day of June, 1909, after having made an order allowing 30 days after adjournment for filing the statement of facts. The statement of facts was filed July 27th, 1909. The Act of 1907, which was in force when the case was tried, when the motion for new trial was overruled and when the order allowing 30 days in which to file a statement of facts was made, limited the time for which an order might be made allowing statement of facts to be filed after the court adjourned, to twenty days; and appellee’s contention is that as the statement of facts in this case was not filed within twenty days, it was filed too late, and therefore should be stricken out. The Act of 1909 (Laws 31st Leg., p. 376) provides, in express terms, that the parties to the suit shall he entitled to, and by that Act are granted, 30 days after adjournment of the court in which to prepare and file a statement of facts and hills of exception. That statute was approved by the Governor on May 1st, 1909, but did not take effect until 90 days after the Legislature adjourned, which was on April 11th, 1909. In other words, that law took effect on the 10th day of July, 1909; and at that time the 20 days which appellant was entitled to under order of the court for filing the statement of facts had not expired. The order referred to, while it undertook to grant thirty days, which at that time the court had no power to grant, had the effect of allowing twenty days within which to file the statement of facts. Then, before that time had expired, the Act of 1909 took effect, which by its terms allowed 30 days after adjournment, unless it should be held to apply only to cases tried after that law took effect. Being a remedial statute, we see no reason why it should be given such restricted construction, and we therefore hold that it applies to this case, and had the effect of granting 30 days after the adjournment of the court, for the purpose of filing the statement of facts and bills of exception.

II. The other ground of the motion requires a construction of section 6 of the Act of 1909. That section reads as follows:

“Section 6. Upon the filing in the office of the clerk of the court by the official shorthand reporter of his transcript as provided in section 5 of this Act, the party appealing shall prepare or cause to be prepared a statement of facts in duplicate, which shall consist of the evidence adduced upon the trial, both oral and by deposition, stated in a succinct manner and without unnecessary repetition, together with copies of such documents, sketches, maps and other matters as were used in evidence. It shall not be necessary to copy said statement of facts in the transcript of the clerk on appeal, but the same shall, when agreed to by the parties and approved by the judge, or in the event of a failure of the parties to agree and a statement of facts is prepared and certified by the judge trying the case, be filed in duplicate with the clerk of the court, and the original thereof shall be sent up as a part of the record in the cause on appeal. Provided, however, that the official shorthand reporter shall, when requested by the party appealing, prepare under the direction of the party appealing, a statement of facts in narrative form in duplicate, and deliver same to the party appealing, for which said statement of facts he shall be paid the sum of ten cents per folio of 100 words for the original copy'and no charge shall be made for the duplicate copy; provided such amount shall not be taxed as costs in the case, if a transcript of the testimony in the form of questions and answers has • been theretofore filed with the clerk and taxed as costs.”

The Act of 1907 expressly required the evidence of witnesses to be stated in narrative form; and this court has held that flagrant departures from that requirement would constitute sufficient ground for striking out a statement of facts. It will be observed that the statute now under consideration does not expressly require that, in the preparation of a statement of facts, the evidence shal be stated in narrative form. The express requirement is that it shall be stated “in a succinct manner and without unnecessary repetition.” It is true that the proviso in section 6 requires the official stenographer, when requested by the party appealing, to prepare a statement of facts in narrative form, which strongly indicates that the Legislature supposed that it would require the narrative form to state the evidence in a succinct manner; and, as a general rule, that is correct. Of course, there may be instances in which it would be necessary to have the evidence stated in the form of questions and answers, in order to properly present a particular question in the appellate court; and in such exceptional instances the statute should be so construed as to permit that course to be pursued. In other words, the statute was intended to eliminate useless' verbosity, to cut out superfluities and to present, with reasonable terseness, such evidence as would be material on appeal. As before said, a question might arise which could not be properly presented on appeal without giving the questions and • answers; and, while to do so might not be as succinct as evidence could possibly be stated, yet it would be as succinct as would be reasonable in the particular instance. Furthermore, this and all such rules, have a spirit as well as a letter, and they should be given a reasonable construction and application and severe penalties should not be imposed for slight departures from such rules. In the case at bar the statement of facts comprises 40 pages, and it contains about 30 questions propounded to witnesses. Few, if any, of them are necessary to elucidate any question involved in the appeal, but they are not long and do not consume very much space. It is also probable that the stenographer’s notes were used in incorporating in the statement of facts bills of exception to testimony; and in doing so, more space was used than was necessary, however, not more, perhaps, than would have been used if separate bills of exception had been prepared and filed. Such being the conditions, this court does not feel certain that there was such flagrant or material departure from the statute as would justify the severe penalty of striking out the statement of facts. And especially so, as the statute referred to is a new law and has not heretofore been construed by any of the appellate courts. However, it is deemed proper to admonish those charged with compliance with its terms to exercise care and not rely upon the indulgence of this court. In the future this court will expect substantial compliance with the statute. As a matter of fact, the statute may be violated though the evidence be stated in narrative form. Such violation may consist in writing out in full a witness’ testimony when the fact to which the testimony relates is so clearly established that the statement of facts should merely contain the statement that that fact was proved, and not set out the evidence by which the proof was made. Also, in many instances, a witness on the stand repeats his testimony upon a given point; and, as a general rule, such repetition should not be incorporated in the statement of facts in narrative form or otherwise.

Before closing this opinion it is deemed proper to direct attention to one other matter. Hnder the present law the clerk is not permitted to copy the statement of facts in the transcript, -and the original statement of facts is reqiiired to be filed in the Court of Civil Appeals. If it was supposed by the Legislature that the change referred to would facilitate the work of the appellate courts, that supposition was erroneous. On the contrary, unless more care he taken in the preparation of statements of facts, that change will tend to retard instead of .promote the dispatch of business by such courts. In this court, in more than one instance, we have been confronted by original statements of facts not prepared in conformity with District Court Rule 90, and containing various lead pencil additions and interlineations in the almost undecipherable handwriting of some of the distinguished attorney's who practice in this court. Just what power this court may have to correct evils of that kind we have not yet undertaken to determine; but if that evil continues, we shall attempt to find a remedy, and those interested in such matters are admonished to govern themselves accordingly.

Motion overruled.