* Headnote 1. Appeal and Error, 4 C.J., Section 2241. This is a motion by appellant to strike from the bill of exceptions, which is a part of the record under the statute, a portion of the testimony of one of the witnesses who testified in the trial court. The ground of the motion is that the objectionable part of the record does not purport to be, and is not in fact the testimony of the witness given in the form of questions and answers, but is a mere attempted recital by the court stenographer of what the witness testified to.
As appears from the bill of exceptions, one of the witnesses was recalled to the stand, and the court stenographer, instead of taking down his examination in the form of questions and answers, simply undertook to state the facts the witness testified to.
The evidence was taken by the regular court stenographer, whose transcribed notes of the evidence became a part of the record under chapter 111, Laws of 1910 (Hemingway's Code, sections 582 to 585, inclusive). There was no effort on the part of appellant to amend the bill of exceptions before the cause was transferred to this court by appeal. The statute above referred to furnishes an ample remedy for any errors and defects in the bill of exceptions. They should be corrected in the lower court before the cause is transferred to this court on appeal. It is too late after the bill of exceptions has became a part of the record and the cause is in this court, except to proceed as provided by section 799, Code 1906 (Hemingway's Code, section 587).
Motion overruled. *Page 155