White v. White

McCOMB, J. This is a motion by respondent to strike from the clerk’s transcript on appeal the engrossed bill of exceptions and for such other and further relief as to this court may seem just and equitable, on the grounds (1) that the transcript • was not certified by the trial judge within ten days after the bill of exceptions had been settled, and (2) that the engrossed transcript omits testimony which the trial judge at the time of the settlement of the bill of excepions ordered included in the engrossed bill of exceptions.

The essential facts are:

March 4, 1939, appellant filed a notice of appeal from a judgment theretofore entered in favor of respondent. Thereafter appellant obtained an extension of time for the filing of a proposed bill of exceptions, which was filed within the time as extended. The trial court set March 29, 1939, as the date for settling the objections to the proposed bill of exceptions and settling the same. At the appointed time the trial judge settled the proposed bill of exceptions. April 6, 1939, there was delivered to the trial judge the engrossed bill of exceptions. This the trial judge did not check himself but left to his clerk for checking, who in doing so failed to notice that the following testimony which the trial judge had ordered included in the engrossed bill of exceptions had been omitted:

(1) Line 23, page two, engrossed bill of exceptions:

‘ ‘ 1. Additional testimony of Orrin A. White:

“ ‘That the said Orrin A. White further testified that the said note had never been paid and/or that the sum of $2,-[165000].00 had never been repaid to the plaintiff. That the sum of $2,000.00 as evidenced by said note was received by him and used in the construction of the dwelling house now owned and occupied by him. That immediately upon the receipt of the sum of $2,000.00 from Mark B. White, he sent the note referred to in the pleadings to the said Orrin A. White. ’ ’ ’

(2) Line 14, page three, engrossed bill of exceptions:

“2. Additional testimony of Mark B. White:

“ ‘That said witness further testified defendant requested in writing, a loan of $2,000.00 and that he replied to defendant agreeing to loan him the said sum of $2,000.00 and stated to him in a letter that he had some 15 year Gold Bonds with ten years left to run and that in order to make the loan he would have to cash those Gold Bonds and that he would use the proceeds thereof to loan the $2,000.00 to the defendant but that he would require a note from the defendant on the same terms and for the same length of time as existed in relation to the Gold Bonds referred to, which said Gold Bonds the note of defendant would have to replace. That pursuant to this letter the sum of $2,000.00 was sent by plaintiff to defendant, which said sum was obtained from the sale of the Gold Bonds and the defendant, in return, sent to plaintiff a note with the due date left blank and stated in an accompanying letter that said note would have to run for a long time as suggested by plaintiff and that he, defendant, would not be able to pay for at least ten years. That he, plaintiff, paid the said sum of $2,000.00 to defendant as consideration for said note.