Blessett v. Turcotte

Ellsworth, J.

(dissenting). My dissent to the foregoing opinion is directed not so much against the conclusions reached by a majority of my associates upon the facts considered by them, as it is to the insufficiency of the record produced here by appellant to warrant the reversal of the judgment of the district court.

In its application to the law of appeal, the principle is elementary, and has for years been so recognized in the practice of this court that the party alleging reversible error in the judgment of a district court has upon him the burden of producing before this court a record of which this court is authorized to take legal cognizance, and which affirmatively shows upon its face the error upon which he relies. If the error appears on the face of the statutory judgment roll, all that is necessary to authenticate the record on appeal is proof by means of a certificate of the judge or clerk of court that it is the judgment roll. On the other hand, if the error relied on does not appear upon the judgment roll, but only in the record of the proceedings upon the trial, it is necessary before such error can be properly presented to and considered by this court that it be brought up by means of a statement .of the case prepared, proposed, settled, and certified in the form and manner prescribed by law. The statute discloses in detail the acts that shall be done and the proceedings taken in order to obtain such authentication of a statement of the case, and, if these requirements are not complied with, the deficiency is not supplied by an admission or even a stipulation that the stated case as produced here truly represents the facts occurring on the trial. Thuet v. Strong, 7 N. D. 565, 75 N. W. 922. This court has not then before it a record of which it can take cognizance for the purpose of reversing a judgment which imports verity and upon its face is without error which warrants reversal.

A party desiring to have settled for the purposes of appeal a statement of the case which will show errors of law occurring upon the trial, or that the findings of the court are not sustained by the evidence, must “within thirty days after receiving notice of the entry of judgment or such further time as the court may allow, prepare the draft of a statement and serve the same upon the adverse party. Such draft must contain all the exceptions upon which the party relies, but- no particular form of exception is required. . . . Within twenty *162days after the service of the draft of a statement, the adverse party may propose amendments to the same and serve snch amendments upon the other party. The proposed statement and amendments must within twenty days thereafter be presented by the party seeking the settlement thereof to the judge who tried or heard the case upon five days’ notice to the adverse party. At the time designated the judge must settle the statement. If no amendments are served, or, if served, are allowed, the proposed statement may be presented with the amendments, if any, to the judge for settlement without notice to the adverse party. . . . It is the duty of the judge in settling the statement to strike out of it all redundant and useless matter and to make the statement truly represent the case notwithstanding the assent of the parties to such matter.” Rev. Codes 1905, § 7058. If the ease in which the statement is prepared is one tried by the court without a jury, and is not an action properly triable by a jury, the statement of the case is to be settled within the time and in the manner referred to in § 7058, although a different form is required both of the body of the statement and of the specifications of error embodied in it. If appellant desires to review the entire case, the only specification necessary is one to the effect that he desires such review in the supreme court. Rev. Codes 1905, § 7229. Rule 15, Supreme Court Rules.

In the case at bar it appears from the affidavit of respondents’ attorney and from an examination of the statement of the case filed in this court that the only service made upon respondents’ attorney for the purpose of obtaining a settlement of such statement was a document consisting of six typewritten pages designated by appellants’ attorney as “draft of statement of the case” and consisting of seventy-seven so-called “exceptions,” of which the first is, in the words: “Appellants herein specify that they desire a review of the entire case in the supreme court.” The other exceptions or specifications refer entirely to certain proceedings had on the trial of the case being principally objections to the introduction of evidence. Under the rule of this court above referred to, the only exception thát was necessary to the preparation of a statement of the case upon which appellant desired a review of the entire case was the one quoted above. *163The others were therefore wholly unnecessary, ana may be regarded as mere surplusage.

The proof of service upon attorneys for the adverse party of the proposed statement of the case, brought before the judge of the district court at the time settlement was applied for, consists of an affidavit of appellants’ attorney to the effect that “on the 18th day of May, 1908, deponent deposited in the postoffice at Eolia, North Dakota, a letter sealed and addressed to Eobinson & Lemke, -Fargo, North Dakota, postage prepaid, containing a copy of the draft of statement of case in the above-entitled action; . . . that more than twenty days have elapsed since the mailing of said copy of draft of statement of case, and that dxiring said time no proposed amendments to same have been served upon deponent.” On this showing without notice to respondents’ attorneys, on June 16, 1908, appellants’ attorney applied to the district court for settlement of a statement of the case. The statement apparently presented by appellants’ attorneys at that time and settled by the district court was a document including not only the six pages of typewritten matter served on respondents’ counsel, but in addition thereto a transcript of forty-four pages, containing the testimony taken upon the trial of the action, to which was attached a number of exhibits consisting of a patent, mortgage, deed, certified copies of tax records, and some other papers; in fact, all exhibits introduced and all evidence offered or proceedings had by either party upon the trial. The judge of the district court in certifying the statement recited that “the statement of the case in the above-entitled action having in accordance with law been presented to me for settlement on the 16th day of June, a. d. 1908, and it appearing that due and proper notice of all proceedings therein relating to settlement of the same have been duly given by Fred E. Harris, attorney for defendants above, to Eobinson and Lemke, attorneys for plaintiffs herein, and it appearaing that all proceedings herein have been regular and in accordance with law,’.’ etc. The statement, when certified, was filed with the clerk of the district court as a part of the record of the case, and was so transmitted to this court. Eespondents’ attorneys, according to an undisputed showing, received no notice whatever of this settlement of this statement except so far as the service of the list of .“exceptions” can be said to operate as such, and did not know that a statement of the case containing a transcript *164of the testimony and all exhibits claimed to have been offered in evidence was among the records until appellants’ abstract upon appeal, in which is incorporated the greater part of this evidence, was served upon them. They then examined the record on appeal filed in this court, and, finding here a certified statement of the case. containing a great mass of matter not contained in the draft served upon them, moved to strike from the files all parts of such statement except the six pages served, on the ground that these parts were not prepared and certified in such manner as to warrant this court in taking legal cognizance of them.

On the hearing of such motion, appellants’ counsel did not dispute the fact that there was no service on respondents’ attorneys other than that of the six pages of so-called “exceptions,” but claimed that after such service and no amendment served within twenty days, when the proposed statement was presented to 'the judge of the district court for settlement, the judge of the district court was authorized in the discharge of his duty “to strike out of it all redundant and useless matter and to make the statement truly represent the ease,” to attach, if he saw fit, to the six pages served the forty-four additional pages of testimony together with the exhibits, and that respondent was in no manner prejudiced by such action of the district court for the reason that the statement so made up and completed was a true one, and that respondent, having failed to propose amendments to the draft served upon him, was presumed to consent to the settlement of the statement, as it now appears, without notice. My associates regard the failure to serve any part of the statement of the case except the specifications of error as a mere irregularity, and hold that “respondents have not been prejudiced by the irregularity, if any, in the trial court’s settling the proposed statement of the case, and it would be extremely technical to grant this motion,” and then proceed to a reversal of the judgment for error occurring upon the trial and shown, not by the judgment roll, but by those portions of the statement of the case which were not served on respondents’ counsel and which they have moved to have stricken from the record.

In my opinion such holding is not only contrary to the express terms of the statute and inconsistent with every principle established by former rulings of this court in the matter of the settlement of a statement *165of the case, blit is in its character revolutionary. The initial step and the basis of all proceedings leading up to the settlement of a statement of the case is the preparation of the statement in a certain form and its service when so prepared upon counsel for the adverse party. This proposed statement must contain certain specifications of error without which it may, even when settled, be disregarded on motion for a new trial for appeal. But there is less reason for regarding the specification as the only essential part of the proposed statement than for holding that the body of the statement may be so considered without the specification. Both the statute and the rules of court provide what the proposed statement of the case shall contain, and it is apparent that, in cases of this class, its essential parts are a literal transcript of the testimony to which are attached all .exhibits capable of physical attachment and the specification of error, which in this case consists simply of a declaration that the appellant desires a review of the entire case in the supreme court, all of which must be included in the draft or proposed statement and served on the adverse party. Keference to the statute shows that the district judge is given authority to settle only the proposed statement with the amendments, if any. A statement is proposed by serving it upon the other party. If it is not served, it is not proposed, and the district judge has no authority to settle it. If he settles it without service on the other party, or, in other words, without any authority whatever, this court is not authorized upon appeal to recognize it in any way whatever, and certainly is not in such case permitted to make it the basis for the reversal of a judgment of the district court.

From the affidavit of service made by appellants’ counsel, and his action in applying for settlement without notice, it would seem that in serving the statement of the case he was acting under a misapprehension, and that the six pages of “exceptions,” denominated by him “draft of statement of the case,” was in his mind the draft of a statement such as is required by § 7058 to be served upon the adverse party. After serving this so-called “draft” and receiving no notice of amendment, he seems, from the certificate of the district judge, to have attached to it the transcript of testimony and the exhibits, and presented the entire mass of matter to the judge of the district court as the draft of the statement proposed by him. There is nothing in the certificate *166of the district judge which indicates-that the proposed'statement when presented to him was imperfect in any way, and that in the exercise of his duty “to make the statement truly represent the case” he attached thereto the transcript and the exhibits.. His certificate indicates conclusively, I think, that he supposed that the entire proposed statement of the case presented to him for settlement had been served on the adverse party; and, no amendment thereto being offered, he proceeded to settle it accordingly.

The point, therefore, of a statement revised, altered, or greatly enlarged by the district judge at the time of settlement is not presented by the facts of this case. It is apparently a case where the judge under a misunderstanding induced by appellants’ counsel settled a statement that had not been proposed. Upon the state of fact shown here, in my opinion appellants have entirely failed to produce a record showing any error whatever of the district court in the entry of this judgment. A purported record of which this court cannot take legal cognizance should be stricken out without hesitation. To hold that respondent is not prejudiced by the consideration of an abortive statement of the case, because he does not demonstrate to this court that it fails to truly show the facts, serves to deprive a judgment of all presumptive correctness and verity, and to lay upon a respondent upon appeal the burden of sustaining it in these particulars by an extrinsic showing. This court has held in a recent decision that a statement of the case admitted'to be true in all particulars and properly served could not be considered on appeal, because there was not at the time of settlement a specification of error attached. McLaughlin v. Thompson, 19 N. D. 34, 120 N. W. 554. Is it now intended to establish the precedent that, if a detached specification of error is served, the statement will be considered when settled, even though the entire body of it has not been proposed? In a decision still more recent this court has held that a statement of the case admitted to be true in all particulars served in its entirety on the adverse party, and to which a proper specification of error was attached, will be stricken out because it was served after the statutory time allowed by § 7058 for such service. Folsom v. Norton (N. D.) 125 N. W. 310. Is it now to be established as a rule of practice that a statement served neither within the statutory time nor in fact at all -and settled by a district judge under an evident mis*167apprehension of fact will be considered over the objection of respondent as the basis for the reversal of a judgment ? It seems to me that the precedent of the majority opinion in this ease must necessarily operate to revolutionize the entire practice of the courts of the state with reference to the preparation and settlement of statements of the case.

The authority given the district court in settling a statement of the case “to strike out all redundant and useless matter, and to make the statement truly represent the case,” can mean nothing more than that the proposed statement of the case presented for settlement may be reduced in amount, or in case of clerical error, or mistake in the substance of the matter proposed, be corrected, so as to truly show the facts. The evident intent of the statute is that the appellant shall prepare the statement of the case and give notice to the adverse party of all facts that he desires settled and certified by the district judge. The service upon the adverse party of a statement of the facts to be settled is at least of equal, and in my opinion of vastly greater, importance than that it should be served within a certain time after notice of entry of judgment. The reason stated in the majority opinion as a ground for the denial of respondents’ motion to strike out, that “plaintiffs’ attorneys knew that the trial court had no authority to settle the proposed statement of the case served upon them. They served no amendments, and, when the proposed statement was presented to the trial court, it was settled in the only way in which the trial court •could have settled it,” is, I believe, entirely inadequate. The only possible inference from this language is that, when respondent was •served with a specification of error or demand for a retrial, it became his duty to at once procure a transcript of the testimony and all the exhibits, and within the twenty days allowed him for that purpose propose this mass of matter as an amendment to the insignificant fragment served by appellant, and that he must do this at the peril that unless done at the end of twenty days a statement which he has had no opportunity to examine may' be settled without notice; and he be concluded to question its correctness. I cannot understand how under any reasonable construction the statute can be so read. The statement that the trial court “settled it in the only way in which it could have been settled” seems to imply that, when application is made, the trial *168court must settle a statement whether or not one has been proposed. The district court is always at liberty if it knows that a copy has not been served upon respondent’s counsel to refuse to settle any statement whatever, and to require appellant to present for settlement a proper proposed statement.

I believe that the district court was entirely without authority to settle such a statement as is here presented, and that this court is without authority to consider it for the purpose of reversing the judgment. Whether or not a judgment of reversal might be properly based upon the judgment roll is not necessary for me to consider, as the majority opinion proceeds entirely upon the facts as shown by the statement of the ease.