Ivinson v. Alsop

By the Court,

Thomas, J.:

This is an action in replevin brought by said Ivinson against said Aisop, in the district court of the second judicial district of the territory of Wyoming, sitting for the county of Albany, to recover the possession of four hundred head of cattle and one hundred and forty head of horses, all of the alleged value in the aggregate of the sum of ten thousand dollars.

The amended answer of the defendant contains a denial of the wrongful detention of said property, and averments that said property belonged to the defendant as assignee in bankruptcy of the estate of the late firm of H. Latham & Co., and that as such assignee he had sustained damage to the amount of ten thousand dollars by reason of the seizure of said property under the writ of replevin herein. The venue was changed- by an order of court on application of defendant, from Albany county to the county of Carbon, and was tried, before Chief Justice Fisher and a jury, December 12, 1874.

The court ordered the jury to find for the defendant, and his damages were assessed by said jury at seven thousand three hundred and twenty-nine dollars and seven cents. A motion for a new trial -was then made and overruled but was not incorporated in the bill of execution, and judgment was *254ordered upon said verdict. It is now sought by the plaintiff to have the case reviewed in this court upon a writ of error, while the defendant in error moves to have the judgment affirmed for reasons of defects in the record.

The record in this case of the proceedings in the court below is not sent to this court in accordance with those rules of practice which have long been settled and established.

1. The transcript or record in this case was made up and filed in violation of the rules and decisions of this court in reference to practice therein; and which are in substance, that all evidence to or bearing upon the exceptions relied on by the plaintiff in error shall be set out in the record fully and specifically, and if instructions of the court are complained of, the instructions and all of the same must also be set forth verbatim et literatim.

2. Rule Y of the supreme court of the territory provides as follows: “No case will be heard in court unless a motion for a new trial shall have been made in the court below, in which all matters of errors and exceptions have been presented, argued, and the motion overruled.” In the suit before us the motion for a new trial was not incorporated in the bill of exceptions, and such bill does not contain any exception to the order overruling the motion for a new trial.

3. The record of the district court was not filed with the petition in error, but was filed several days thereafter with the clerk of the court, and without the permission of the court, whereas section 516 of the civil code of this territory provides that: “the plaintiff in error shall file with his petition a transcript of the proceedings containing the final judgment or order sought to be revised, vacated or modified.” Permission was subsequently given the plaintiff in error by the court to have such transcript amended, but the question was then neither raised nor decided as to the propriety of filing the transcript without permission several days after filing the petition in error.

Por the reasons above mentioned, especially those con*255tained under the first head of this opinion, it is impossible for this court to review in a proper and intelligent manner the proceedings of the district court. On many of the important questions in the petition in error, none of the testimony of witnesses whatever is given, and on the others the record is so defective, that although an attempt appears to have been made to return the evidence, the court cannot fully or sufficiently inform itself as to the rulings and decisions of the lower court upon the points complained of as error. Neither are those portions of the judge’s charge to which exceptions are taken set forth in accordance with the rules of court nor in a manner that it can adyisedly pass upon the same.

The judgment of the district court is therefore affirmed.