ON REHEARING.
On the petition of appellants a rehearing was ordered in this case, mainly upon the point hereinafter discussed, and which has been fully argued by counsel for the respective parties. After the case had been argued and submitted upon the former hearing, and without any application to this court, or leave of this court in any manner obtained or requested, the respondent, on notice to appellants, applied to the Judge of the District Court to have the bill of exception in the case amended and corrected. At the appointed time counsel appeared before the Judge of the District Court, and urged the same objections against any action by that official that are urged here, which are, in effect, although in many forms, that such judge was without power or right, in the then condition of the case, to in any manner change the record. These objections were overruled, and the amendment or correction ordered, the appellants saving an exception. The amendment having been made, respondent applied to a judge of this court, under Rule 37, and obtained an order directing the clerk of the District Court to transmit the amendment to this court. This was done, and the amendment was in this court and treated as a part of the record when the former opinon was handed down. It appears that at the trial below, the plaintiff, who is respondent here, offered in evidence what purported to be a letter written by the defendant Booker to the plaintiff. The record, as it originally came to us, showed that the defendants objected to the introduction of the letter, for the reasons that the same was “incompetent, irrelevant, and immaterial, and no proper *555foundation laid for its introduction.” The objection was overruled, and the letter received. This, we understand, is in accord with the stenographer’s notes, and appellants claim in accord with the facts. The amendment makes the record show that when the objection as above stated was made to the letter, counsel for the defendants at the same time admitted the signature to the letter to be the genuine signature of the defendant Booker. The letter is as follows: “Pembina, Dak., Sept. 14th, 1891. Mrs. L. E. Moore, San Jose, Cal. — Dear Mrs. Moore: I am just in receipt of yours written Aug. 28th, and held at your office for postage. In reply, I will not pay off the mortgage, as I only expected to get the rent of the property for the taxes I paid on the house. Now, you may have the deed of the property for your mortgages, only I want the money I paid for taxes. I did not assume the payment of the mortgages, and do not expect to pay it. You have the same protection you had before I bought the property, hence you cannot think that I am doing you any injustice. Rather thán have you think so, I would lose one-half of the amount. I paid taxes, and give you a deed. Mr. Ryan bought the property, put it in my name in order to secure the money advanced, and I was to have yi interest in the profit if anything was made upon the investment. I do not want the property myself at any reasonable price, as it is too good to rent, and is running down every day, with that Irish family in it, and there is no one here able to buy it to live in. My uncle made Mr. Ryan an offer for it, but I hardly think he wants it now, as his wife has concluded the weather is too cold here. With kindest regards and best wishes, I am, sincerely your friend, L. E. Booker.” It is at once apparent that, if the letter was in fact the letter of Mr. Booker, it is competent, and quite material; and, if the signature was admitted, then the letter was properly received in evidence. On the other hand, if the signature was not admitted, and if the objection was broad enough to cover that point, the letter was improperly received. Hence the materiality of the amendment. We are all agreed that, under the circum*556stances as they existed, the trial judge could not amend or correct the bill of exceptions. As we have stated, there was no application to this court, no suggestion here of a diminution or imperfect record. Under our practice statutes, when an appeal is taken, unless the trial court expressly orders otherwise, the original papers and record in the case are transmitted to this court. No such order was made in this case, consequently the original record came to this court, and was the record of this court at the time the amendment was made. There was no record in the trial court to be amended or corrected. There is not entire uniformity in the decisions touching the power of the trial court to make orders in a case while it is pending on appeal in a higher court. In Levi v. Karrick, 15 Iowa, 444, the Supreme Court of that state said: “The simple matter of fact is that when an appeal is taken all power of the court below over the parties and the subject matter of the controversy is lost until the cause or some part thereof, is remanded back, by order of this court, for its further action.” And this was reaffirmed in Carmichael v. Vandeburr, 51 Iowa, 225, 1 N. W. 477, which was an appeal from an order of the trial court refusing to entertain a motion in a case pending on appeal. In Perry v. Breed, 117 Mass. 155, the court say at page 164: “In strictness, after a bill of exceptions has been once allowed, and has been entered in this court, this court has exclusive jurisdiction of it, and the judge below cannot alter it without the authority of this court.” But it is said to be the common practice in that state, on motion of either party before argument, and on cause shown, to postpone the hearing, and authorize an application to the trial court to correct the bill. See, also, Penrice v. Wallis, 37 Miss. 172; Keyser v. Farr, 105 U. S. 265; State v. Jackson (N. C.) 16 S. E. 906.. The record was amended in State v. Town Board, 69 Wis. 264, 34 N. W. 123, but it was based exclusively upon the fact that the record still remained in the trial court, not even a transcript having been sent to the supreme court, although the appeal had been perfected. But see Rehmstedt v. Briscoe, 55 Wis. 616, 13 N. W. 687. In National City Bank *557v. New York Gold Exchange Bank, 97 N. Y. 645, the court of appeals held that the supreme court had power to amend its record after appeal. While it is not so stated, yet it is evident that the record amended remained in the supreme court. In Elliott, App. Proc. § 205, it is said: “We have elsewhere pointed out the difference between the record of the trial court and the record on appeal, and have shown that the difference is an important one, inasmuch as over the one record power remains in the trial court, while over the other it resides exclusively in the appellate court.’’ From these authorities it appears that, while in some jurisdictions the record remaining in the trial court may be amended or corrected by the trial court after an appeal is perfected, yet the prevailing doctrine would seem to deny any power in the trial court to change the record in any manner that would affect the disposition of the case in the appellate court, without an application to the appellate court to have the record remanded for amendment or correction. The facts of this case require us to go to no greater length than to hold that when, upon an appeal to this court, the original papers are sent up, and when the case has been argued and submitted upon the record as thus sent to this court, the trial court has thereafter no power to amend or correct the bill of exceptions as contained in the record, unless, upon application to this court, the bill is remanded for that purpose. Any other holding would be attended with great confusion, uncertainty, and delay, and ought not to be tolerated. See, also, Chesley v. Boom Co., 39 Minn. 83, 38 N. W. 769; Spensley v. Insurance Co., 62 Wis. 443, 22 N. W. 740.
With the amendment eliminated, the appellants insist that it was error to admit the letter in evidence over objections. Respondent claims that the objections are insufficient to raise a question on the signature. We think otherwise. The letter purported to be written by one of the defendants. Its contents related to the subject-matter in controversy. Plaintiff had a legal right to the benefit of any admissions made by Mr. Booker concerning the matter in dispute. There was but one prerequisite, — such admiss*558ions must be shown to be the defendant’s admissions. If in writing, and signed, the signature must be proven. When the objection was made that “no proper foundation had been laid,” it could refer only to the fact that the signature had not been proven, as no other foundation was required. Neither court nor opposing counsel could have been misled. It follows that the admission of the letter in evidence was error. Was it prejudicial error? Respondent insists that it was not, but we are unable to so hold. Error once established, prejudice will be presumed, unless it clearly appears that prejudice could not have resulted. Comaskey v. Railroad Co., 3 N. D. 276, 55 N. W. 732; Hegar v. De Groat, 3 N. D. 354, 56 N. W. 150. The letter unmistakably conveys the impression that Ryan was interested in the property, and the court so found, although the original complaint charged a purchase by Booker, through Ryan as agent, and all of the witnesses for respondent so testified. In the absence of the alleged letter, the court might have so found. Had the court so found, it is far from certain that it could have further found that Ryan was ever authorized by Booker to make the purchase and assume the incumbrances, or that Booker ever ratified the acts of Ryan with knowledge of the facts. We think the error was prejudicial, and requires a reversal, and we reach this conclusion with less reluctance by reason of the unsatisfactory condition of the pleadings upon which the case was tried, and the difficulty we have experienced in ascertaining just what the trial court intended to find, and the basis of its conclusions. The District Court will reverse its judgment, and order a new trial.
Reversed.
All concur.