Kurtz v. Cutler

MELVIN, J.

Defendant Putnam appeals from an order of the superior court denying his motion for a new trial.

This case has been before us twice—once on motion to dismiss and again on motion to affirm on the record. The first motion was denied because the lack of specifications of error is not a ground for dismissal, and the other was denied without prejudice because the court declined to make the inspection of the record which would be involved until the case should be regularly before us on appeal. It has now reached that position, and we will examine the transcript in the light of the contention of respondents that there is no record upon which the court may consider any alleged errors.

[179]

The action was one relating to the rescission of a contract for the exchange' of real property and the recovery of the land of plaintiffs alleged to have been secured by fraud. Chronologically, the following facts appear from the record before us:

The original complaint was filed May 22, 1908; amended complaint December 15, 1908; and the case came on regularly for trial June 13, 1911. The decree was filed June 17, 1912, and the judgment-roll was filed on the following day. There was no attempted appeal from the judgment. The court denied the motion for a new trial August 19, 1914, and notice of appeal from said order was filed October 16, 1914, having been served upon the attorneys for respondents on some earlier day of the same month.

Following the clerk’s certificate to the judgment-roll in the printed transcript before us are fifty pages of matter under the title, “Bill of Exceptions,” purporting to be an assignment of errors and specifications of the particulars of insufficiency of evidence. This bill does not purport to have been signed by an attorney, settled by any judge, nor formally filed in the action.

It is followed by that which apparently is a reproduction of a document fully entitled in the action and bearing the designation, “Statement on Motion for New Trial.” This seems to be a statement of the testimony received at the trial and the proceedings thereon. It covers more than four hundred pages of the printed transcript. Counsel for respondents stipulated on April 10, 1914, that it was a true and correct “bill of exceptions,” which might be settled by the court. It purports to have been settled “within the time and as required by law,” and bears the name of the Hon. E. P. Unangst, judge of the superior court, under date of April 11, 1914. There appear to have been two filing marks on this document, for the printed copy shows that it was indorsed as filed April 23, 1914, and March 4, 1915. If we regard the printed transcript alone, these indorsements create an ambiguity which we must settle against the party seeking to establish error. It is impossible to tell when the documents were filed or when either of them received the clerk’s indorsement. While the term “bill of exceptions” is used in the order of settlement, it is not clear whether that order refers to the document so entitled or to the one designated as “Statement on Motion for New Trial.” The location of the copy of this