Thomas Crisp Spelling.

A treatise on new trial and appellate practice; online

. (page 4 of 91)
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of the other party is thus directed to the weak point in his evi-
dence, and if anything has been omitted which would tend to
strengthen his case on that point, he has an opportunity af-
forded to supply it by amendment, and it is his duty to do so.
And, in practice, we have no doubt that this is in all cases
done. It is for this purpose, in part, that a party is author-
ized to have a defective or erroneous statement settled by the
judge. When the statement has been filed, and the opposite
party has had an opportunity to suggest the necessary amend-
ments, and the statement has been thereupon agreed to, or set-
tled by the judge, we think he must be regarded as being es-
topped from averring that there may be other testimony upon
the point As to all other points not specified in the state-
ment, the presumption would be that the evidence sustains the

ti 28 CaL 801, 811.

New Trial, Vol. H— 52


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verdict, and no question can be made upon if That case was
followed in subsequent cases.®* The rule is somewhat diflferent
in Montana. In State v. Shepphard,®* the court expressed
the prevailing view as follows : "Where the judge's certificate is
relied on, we think it suflBcient if it uses any language by which
it clearly appears that the bill contains all the evidence, or so
much thereof as is necessary to demonstrate the point relied
on, and there need be no adherence to any precise words in the
certificate of that fact Where the bill of exceptions itself is
relied on to show the insufficiency of the evidence, it should
either set forth in express language that all the evidence, or
the substance thereof, or so much thereof as is necessary to
illustrate the point relied on, is incorporated in the bill, or it
should contain statements equivalent to such expressions, or it
should show a whole, connected narrative, so constructed that
it clearly appears that all the material evidence, or the substance
thereof, is incorporated in the bill.''

But the presumption does not hold good unless the state*
ment possesses inherent evidence that it is a record of the pro-
ceedings at the trial, and that what is inserted aa evidence was
evidence actually introduced and received. And where a state-
ment in addition to a failure to state that what it contained
was the proceedings, and evidence taken at the trial, failed to
state that any witness was sworn, the supreme court refused to
treat it as a statement for any purpose.^

§ 428. Secord must show affirmative ground for new trial
or reversal — ^Errors in law.

What has been said generally, with reference to essential
matter on the one hand, and redundant matter on the other,
where insufficiency of evidence is relied upon, is equally ap-
plicable where errors in law are relied upon. When an error of
the court is relied on to obtain a new trial, something more is

e3 See Smith v. Athem, 34 Cal. 511; aark v. Gridley, 35 Cal. 403;
Judaon v. Lyford, 84 CaL 509, 24 Pac. 286; EandaU v. Burk Tp., 4
S. Dak. 344, 57 N. W. 4.

64 23 Mont. 323, 58 Pac. 868. Cited and foUowed in Pawer v.
Stocking, 26 Mont. 478, 481, 68 Pac. 857. See, also, Cunie v. Montana
Cent. By. Co., 24 Mont. 123, 60 Pac. 989.

66 Paris V. Raynor, 76 Cal. 647, 18 Pac. 788.


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required than the showing of an abstract error. The state-
ment must contain all that is necessary to show that it was
an error in that particular case, having regard not only to
the bare point presented to the court, but having regard also
to what had been previously or what was subsequently pre-
sented, if that be possible or necessary to show that the error
affected "the substantial right of a parly/'**

Where the error specified is the exclusion of evidence, the
record should show, in order to insure a review of the specifi-
cation on motion for new trial or on appeal, just what the
offer was, in order that it may be determined whether the er-
ror was or was not prejudicial. Thus, in Crusoe v. Clark,*^
the error complained of was the exclusion of defendant's books
kept by plaintiff, offered in evidence by the defendant to prove
the character of work done by the plaintiff as evidence of the
value of plaintiff's services. The supreme court held that it
was error not admit them, but, in the absence of any showing
in the record as to what would have been shown by the books,
it could not be assumed that the books would have shown any-
thing material to the point. The case of Coonan v. Lowen-
thai*® is another fair illustration of the importance of setting
forth evidence in the record, the exclusion of which is as-
signed for error. In that case, the trial court had excluded a
certain written agreement. The supreme court, in passing upon

«« The same idea was thus uniquelj expressed in a New York
ease: "It is the busineCB of the party who takes exception to show
that the decision is wrong. It is not enough that he succeed in mysti-
fjing it by adopting language which subjects the judge to the sus-
picion that he did not understand the safest ground on which to place
it": Munro v. Potter, 34 Barb. 360. Subdivision 7 of section 296 of
the Code of Civil Procedure giving the right to a new trial for error
of law occurring at the trial, and excepted to by the moving party,
embraces error in instructions which can be brqught before the
supreme court in a statement on motion for a new trial, without a
bill of exceptions on an appeal from the order denying the motion:
Kleinsehmidt v. McDezmott, 12 Mont. 309, 30 Pac. 393. A ground of
notion for new trial alleging error in not ruling out evidence can-
not be considered when it does not appear what was the ground of
the motion to rule out: Nix v. State v. 97 Ga. 211, 22 S. E. 975.

•T 127 CaL 341, 345, 59 Pac 700. See, also, Marshall v. Hancock,
80 CaL 82, 22 Pac. 61.

w 129 CaL 197, 201, 61 Pac. 940.


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the point, said, in substance, that, as the agreement wsls not
set out in the record, nor anything to show its materiality, it
was not justified in disturbing the judgment on that ground,
inasmuch as it did not appear that the error complained of
was prejudicial, or that the appellant had sustained any in-
Jury therefrom. And, generally, where the exclusion of evi-
dence is relied on as error, the motion for a new trial (or state-
ment) should allege as error both the exclusion of the ques-
tion and the offer made by appellant to prove the facts which
the answer would have proved.^ The error relied on in a
Pennsylvania case was the rejection of a witness. The appel-
late court admitted that he was erroneously rejected for the
reason assigned, but continuing, said : ^^ut what was he called
to prove? Anything the loss of an opportunity to prove which
was injurious to defendant ? The bill gives no answer to these
questions. We are referred to the appendix of the paper book
for the offer, but the offer is not founcl there, either in the
body of the bill or in the appendix. The substance of what
McCuUough was to prove ought to have been furnished, that
we might see whether harm had been done.*^ '^^ And so, where
it did not appear from the record on appeal that a document of-
fered upon the trial, and ruled admissible by the court, was
read to the jury as evidence, it was held that error was not
shown by the record, even if it would not have been permissible
to read it to the jury.^*

Where error alleged is improper conduct of counsel in re-
ferring to a letter, copy, etc., in the absence of instructions
from the record, it was presumed upon appeal that the im-
proper reference was corrected by an instruction to the jury
to disregard it.''*

The statement need not necessarily contain all the objections
made, but must, of cours?, contain those which, after mature
consideration, are relied upon for new trial or reversal, as well
as a showing that an exception was taken.''*

6« Sunnyside Coal & Coke Co. v. Beitz, 14 Ind. App. 478, 39 N.
E. 541, 43 N. E. 46.

70 Lathrop v. Wightman, 41 Pa. St. 304.

71 Estate of Westerfleld, 96 Cal. 113, 30 Pac 1104.

72 Clark V. Fast, 128 Cal. 422, 61 Pac. 72; post, §§ 684686.
78 See post, i 671.


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Alleged error in instructions to the jury will not be con-
sidered where tlie record upon appeal fails to set forth the tes-
timony upon -wrhich they are predicated, and where it appears
from the record that other instructions were given which are
not embodied therein.^*

Of course^ it is not necessary that a statement or bill should
show objections and exceptions by the successful party.*^

The question of whether the court erred in admitting evi*
dence, admissible as to one of several defendants and not admis?
gible against others^ may depend upon whether it was properly
limited at the time of its introduction or by instruction to
the jury; and where a conversation with the maker of a noto
who WBB one of the defendants was admissible against him^
and not against his codefendant, but the instructions were not
presented by tbe record. It was assumed by the court upon
appeal that the trial court limited the effect of the evidencn
to the maker of the note J*

74 Harris v. Bamhart, 97 Cal. 546, 32 Pac. 589. In this case the
court said: ' ' PlaintiffSy in their notice of motion for a new trial,
specified serveral particulars in which it was claimed the evidence
was Insofficient to justify the verdict, but the evidence in support
thereof is not to be found in the record, and they must therefore be
disregarded. Like eonsiderations apply to the instructions given at
the request of the defendant, except that marked 2, in relation to
the effect of the former judgment; also to those asked on behalf
of plaintiffs and refused. Not having the testimony before us upon
which they are predicated, it is impossible to say whether or not
the court erred. Another reason for not disturbing the judgment on
aeconnt of the instructions given and refused is, that it appears from
the record 'that the court, at the request of the plaintiffs and the
defendant, and on the court's own motion, gave certain other further
and additional instructions to the jury.' As these additional instruc-
tions are not embodied in the record, it must be assumed that, taken
with those given and refused, the law of the case was properly pre-
sented to the jury.'' See, also, post, ft 684*686.

7S Harris v. Frank, 81 Cal. 280, 22 Pac. 856.

TS More v. Finger, 128 CaL 313, 60 Pac. 933. In this case the
court said: "The court did not err in receiving against the objec-
tion of the appellants the testimony of the plaintiff regarding her
conversation with Thomas W. Moore. Thomas was a defendant in
the action, and the testimony was admissible as against him. The
court would have limited the effect of his testimony in its instruc-
tioDs to the jury, if requested by the appellants, and, although the


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§ 429. Becord must show affirmative ground for new trial
or reversal — Verdict against law.
Where the ground urged on motion for new trial is that a
verdict is against law, in that it was contrary to the instruc-
tions of the court, it is essential that all the evidence — at least
all relevant and material on the point covered by the instruc-
tion — should be contained in the statement, and if the ques-
tion be carried to an appellate court, all the instructions should
appear in the record. In an Oregon case,^ the court, refer-
ring to argument of appellant^s counsel, said: ^^He contends
that, from the undisputed facts and the instructions of the
court in the case at bar, the plaintiff was entitled to a verdict,
and that the only remedy for the correction of the error of the
jury was by motion for a new trial. But the facts on which
his argument is based do not appear of record. The bill of
exceptions does not contain, or purport to contain, all the evi-
dence given on the trial, nor all the instructions of the court,
and therefore we could not determine, even if the question was
otherwise properly here, whether the verdict was against law
or not. The pleadings present an issue of fact upon which de-
fendant's liability admittedly depends, and this issue having
been determined by the jury in favor of the defendant, we are
bound to assume, in the absence of an afiirmative showing to
the contrary, that the verdict was supported by the testimony.
Finding no reversible error in the record, the judgment of the
court below is affirmed.*'

§ 430. Becord must show affirmative ground for new trial or
reversal — ^Excessive damages.
It would be difficult, or impossible, in any case to say that
damages assessed by a jury are excessive without reference to

instructions are not in the record, we may assume that it did so
limit it. Even if the plaintiff had been seeking to establish a con-
spiracy between Thomas and the appeUants, the court did not err
in receiving the testimony. The order of proof was in the discretion
of the court, and, if the testimony was not subsequently connected
with the appellants, it would have been stricken out upon their mo-
tion.*' To same effect, Place v. Minister, 65 N. Y, 89.

77 First Nat. Bank v. Linn County Bank, 30 Or. 296, 300, 47 Pac.


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the eTi'dence, In fact, as has been shown/® that objection to
a verdict may be reached on the sixth as well as on ^e special
fifth ground mentioned in section 657 of the Code of Civil Pro-
cedure. But whether the motion be urged upon the one or
the other ground, all the evidence throwing light upon the ques-
tion of the amount of the damages must appear in the state*

§ 431. Brevity and oonoisenesi commended.

The supreme court of California has repeatedly condemned
prolix, profuse and ''stuffed^' statements. It is important to
bear in mind that there is no necessity either that all the evi-
dence or proceedings shall appear in the statement, or that the
judge's certificate shall mention that it contains all that is ma-
teriaL In the absence of the contrary, such will be the pre-
sumption.^ Such is the rtde declared in many decisions; but
in a late case there is a strong intimation that a certain ad-
vantage was gained in that case by reason of a recital in the
judge's certificate that all the evidence on both sides had been
inserted.®* 'T^t is the duty of the judge or referee, in settling
the statement, to strike out of it all redundant and useless mat-
ter, and to make the statement truly represent the case, not-

78 See ante, chapter 12.

7« Patterson v. Ely, 19 CaL 28; ^cCloskey v. Pulitzer Pub. Co.,
163 Mo. 22, 63 a W. 99.

80 See Clark v. Oridley, 85 Cal. 398; Judson v. Lyford, 84 Cal.
509, 24 Pac 286; Hidden v. Jordan, 28 Cal. 303; 3mith v. Athem,
34 CaL 511; Grisby v. Qear Lake Water Co., 40 CaL 405; Abbey
Homestead Assn. ▼. WiUard, 48 CaL 619, where the court said the
rule had been so often repeated that it had become trite. In the
second case cited the court said: ''And it has long ago been settled
that the presumption is that the record contains aU the evidence
which is material to the points specified." The rule is the same
in Utah, under similar code proTdsions: Cereghino v. Cereghino, 4
Utah, 100, 6 Pac. 523. But in Montana it was held where the rec-
ord on appeal did not show that the statement on the motion for
sew trial contained all the evidence an examination could not be
made: Carrie ▼• Montana Cent. By. Co., 24 Mont. 123, 60 Pac. 989,
tollowing State v. Shepphard, 23 Mont. 323, 58 Pac. 868.

81 Standard Quicksilver Co. v. Habisham, 132 CaL 115, 64 Pac.
113. The decision is discussed and the expression criticised, post, S


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withstanding the assent of the parties to such redundant or
uselesg matter, or to any inaccurate statement.®* And the su-
premo oouii looks with disfavor upon a disregard of this pr«>
vision. It can scarcely be expected that trial judges will as*
sume the work of making up a statement^ the contents and
arrangemeijt of which are sanctioned by attorneys for "both
sides; but the attorney for the movant, or appellant, will
greatly increase the chances of a new trial or reversal, if he
devotes special care to conforming the statement to the above?
quoted requirement, and to resisting all attempts of the oppo*
sition to "^tuflP* the record, by amendment

The code provision virith ref erenqe to the preparation and con*
tents of bills of exception means the same as that with ref ereiico
to statements, though the phraseology is slightly difiFerent.
"The objection must be stated with so much of the evidence or
other matter as is necessary to explain it and no more. Only
the substance of the reporter's notes of the evidence shall be
stated. Documents on file in the actioi^ or proceeding may
be copied, or the substance thereof stated, or a reference there-
to, sufficient to identify them, may be made.'^^ *1t is tlie
duty of the judge or referee in settling the bill to strike out
of it all redundant and useless matter, so that the exceptions
may be presented as briefly as possible." ®*

The trial judge should refuse to sign a statement where it
is a mere copy of the stenographer's notes. In Sherman \.
Higgins,®* McLeary, J., delivering the opinion, said: 'It is

82 Cal. Code Civ. Proc, I 659, subd. 3. An instance of superfluous
matter in a statement is where evidence is inserted in support of a
finding which is not assailed: See Lewis v. Kelton, 58 Cal. 303.

88 CaL Code Civ. Proc, S 648.

84 Cal. Code Civ. Proc, $ 650. For Oregon statute and its con-
struction, see Nosier v. Coos Bay Nav. Co., 40 Or. 305, 63 Pac 1060,
64 Pac. 855. The fact that the statute of North Dakota nowhere
provides that the evidence in the statement shall be pruned of its su-
perfluous matter, was held not to annul the rule of the supreme court
requiring the abstract of the record to be an abridgment of the evi-
dence: Farmers' etc Bank v. Davis, 8 N. Dak. 83, 76 N. W. 998.

S5 7 Mont. 479, 17 Pac 561; Rodoni v. Lytle, 13 Mont. 123, 32 Pac.
491, where the court said: ''The statement on motion for new trial
contains the evidence in form of a full transcript of the steno-


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noted in the order overruling the motion for a new trial, that,
*in consideration of an order heretofore made by this court re-
quiring the defendant to reduce the stenographer's minutes filed
in said action to the form of a statement, upon motion for a
new trial, not having been complied with, the said judge de-
clined and refused to sign the same as a statement/ This ac-
tion of the district judge in refusing to settle a statement where-
in the evidence is composed entirely of the stenographer's notes^
without being reduced to proper form^ and having irrelevant
matter eliminated, was entirely correct. It is tiie proper prac-
tice, and we hope to see it universally adopted hereafter by

the judges of the trial courts Counsel seem to misun*

derstand the object of filing the longhand copy of the stenog-
rapher's notes. This is done to enable counsel to prepare their
statements in accordance with the facts presented on the trial,
and to preserve an authentic record to which the judge may
refer in settling statements as prepared by counsel. But the
transcript of the stenographer's notes is not intended to take
the place of the statement to be prepared by counsel, or to re-
lieve them of the labor of preparing the statement itself. It
i? unnecessary to enlarge upon this matter, and we will content
ourselves in referring to cases heretofore decided, in which we
have announced the rule of practice which will hereafter be
followed.'* And in Adams v. Lombard,®* the court said;
"It is true, the parties have stipulated at the end of the state-
ment, Hhat the original books of account of the Mount Pleasant
mine^ given or offered in evidence on said trial, may be ex-
hibited and used by either party, or upon motion for new trial
herein, or in the supreme court on appeal, without further iden-
tification, and with the same force and effect as if the same
had been fully incorporated in this statement ; and that, if any
inaccuracies are discovered in the foregoing statement, pur-

grapher's notes, by question and answer. There was no attempt
made to reduce the evidence to narrative form, and to leave out
immaterial and redundant matter." And the court refused to look
into the statement upon the question of sufficiency or insufficiency
of the evidence. See, also, Wood v. Nissen, 2 N. Dak. 26, 49 N. W.

86 80 Cal. 426, 436, 22 Pac 180. For matters held not necessary
to be incorporated in the statement, see Flinn v. Mowry, 131 Cal.
481, 63 Pae. 724; Estate of Kruger, 130 CaL 621, 63 Pac. 31.


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porting to be colkted from said books, the same may at any
time be corrected according to the books/ This is a very con-
venient way of making a statement, but it places a burden upon
this court which, notwithstanding the fact that it is agreed to
by all the parties, we decline to assume. It is the duty of the
party moving for a new trial to present a statement containing
the grounds upon which he intends to rely, and as much of the
evidence as may be necessary to explain the same, and no more.
The parties have presented for our consideration the books of
the Mount Pleasant mine, kept by the defendant, twenty-six in
number, covering a period of twelve years, and representing
transactions amounting in value to hundreds of thousands of
dollars. We do not feel called upon to perform the labor the
examination of these books would impose upon us/'

But while, as a rule, a bill of exceptions should make as
short and succinct a statement of the evidence as possible,
either in narrative form, giving its substance, or by stating
what the evidence tended to establish, yet no fixed rule can
be laid down upon the subject. And in frequent instances it
may be necessary to state the evidence by question and answijr
in order to lay before the court the exact statement of the
witness, even though it may not be desired to point an excep-
tion, and it must be left largely to the discretion of the trial
judge when settling the bill to determine the proper method
to be pursued in any given case.®^

§ 432. What must appear by statement or bill for purposes
of review.

The broad subject of what will and what will not be reviewed
without being incorporated in a bill of exceptions or statement
is thoroughly discussed elsewhere.^ Questions sometimes
arise, however, whether particular files, documents and other
matters properly belong in the statement or bilL A few sug-

S7 Cohen v. Wallace, 107 Cal. 133, 40 Pac. 101, holding that the
statement of testimony given hy talesmen when sworn upon their
voir dire is properly inserted by question and answer in the bill of
exceptions; also that evidence taken upon the examination of the
shorthand reporter as witness, in reference to testimony claimed to
have been given by defendant upon a former occasion, is necessarily
inserted in the bill of exceptions by question and answer in detail.

88 See chapter 40.

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gestive illustrations will be here given. As a rule, to which
there are few exceptions, all documentary evidence used upon
the trial must, in order to be used on appeal, be incorporated
in the statement or bill, either in substance or verbatim.*®

Though^ in Montana, the notice of intention to move for a
new trial is an indispensable part of the record on appeal, it
is waived where the adverse party offers amendments to the
statement proposed, without objecting to the want of such no-

A party applying for settlement of a statement of facts in

•t Stickney v. Hanrahan (Idaho), 63 Pae. 189.

90 Harrigan v. L3meh, 21 Mont. 36, 52 Pac. 642. A motion for
a new trial not made a part of the record by the bill of exceptions
wiU not be considered on appeal: Maricopa County t. Osborn (Ariz.),
40 Pac. 313. In California the notice need not be contained, nur
need even be mentioned either in the statement or in the bill.

Online LibraryThomas Crisp SpellingA treatise on new trial and appellate practice; → online text (page 4 of 91)