OPINION Respondent has applied for an order to permit him to prove certain exceptions. The case came on regularly for trial on May 1, 1929. Testimony was taken and stenographic notes thereof were made by the official court reporter. After the rendition of the judgment and ruling on motion for new trial, the appellant had made up a proposed bill of exceptions containing so much of the testimony, objections, rulings, and exceptions as she claimed was necessary to bring to the attention of this court for its consideration in disposing of the errors assigned and relied upon by appellant, which she tendered and asked to be settled by the court as a bill of exceptions. On the day set for the settlement of the bill of exceptions, the respondent appeared and objected to the settlement of the bill of exceptions, as proposed, on the ground that the tendered bill of exceptions did not contain the substance of the proceedings relating to the points involved therein. Furthermore, the respondent offered at that time the stenographic notes of all of the testimony taken in the case, as a part of the bill of exceptions.
1. This application is based upon the portion of section 8872, Nev. Comp. Laws 1929, which reads: "* * * If the judge shall in any case refuse to allow an exception in accordance with the facts, any party aggrieved thereby may petition the supreme court for leave to prove the same, and shall have the right so to do, in such mode and manner and according to such regulations as the supreme court may prescribe, or by rules impose, and such exceptions as are allowed by said supreme court shall become a part of the record of the case."
As we understand the contention of counsel for respondent, it simmers down to the proposition that the bill of exceptions as settled does not contain all of the evidence upon the points involved, hence it is subject to amendment so as to bring in all of the evidence.
We do not agree with the theory of the respondent. *Page 74 The section here relied upon was interpreted in Miller v. Miller,36 Nev. 115, 134 P. 100, 103, where it was said:
"* * * The sole purpose and aim of the statute is to permit a party aggrieved, under a proper application to prove an exception actually taken to a ruling actually made, and when so proven the exception and ruling and the facts applicable thereto become a part of the record on appeal, but not in the nature of an amendment to the bill of exceptions or statement on appeal as settled by the trial court. * * *
"The sole object of the statute is to afford relief to a party aggrieved when a trial judge has refused to allow an exception according to the facts; that is, where he has refused to admit by allowance that a particular ruling was made and excepted to when in fact it was made and excepted to. * * *"
So far as appears, the trial court did allow exceptions according to the facts, as provided in the section relied upon. There is no provision in our statutes requiring all of the evidence taken to be embodied in a bill of exceptions.
2, 3. We think, too, that before one can apply to this court under the section mentioned he must exhaust his remedy in the lower court. In other words, if he is dissatisfied with a proposed bill of exceptions he must object thereto within the time and in the manner pointed out in section 3, Stats. 1915, p. 164, c. 142. We do not think the respondent proceeded in the lower court as prescribed in that section. It is true that the objection filed to the proposed bill of exceptions states that said proposed bill of exceptions "does not contain the substance of the proceedings relating to the point or points involved." This and similar general objections were made. We had the section last referred to under consideration in State ex rel. Gray v. District Court, 51 Nev. 412, 278 P. 363, 365, wherein, speaking of the requirement of said section, we said: "* * * This requirement has a very definite and precise meaning. It is opposed to any general designation. It means that the true facts, as claimed by the adverse party, *Page 75 must be stated in a particular manner. They must be supplied in the statement. Nowhere in any of the objections was this attempted to be done. Plaintiff's objections should have been disregarded. Counsel for respondents, on the hearing in this court, first took the position that, under the circumstances of this particular case, it was necessary for the relators to furnish the court reporter's transcript as the bill of exceptions. * * *"
The offer of stenographic notes of the testimony is no compliance with the statute.
We see no theory upon which the application can be granted, and it is hereby denied.