Hedlun v. Holy Terror Mining Co.

Citations

• 14 S.D. 369
• 85 N.W. 861
• 1901 S.D. LEXIS 30

Syllabus

<p>1. Bills of exceptions cannot be amended by the supreme court.</p> <p>2. Where a bill of exceptions showed affirmatively that the trial court read an instruction as one requested by the defendant in language substantially different from the request, thereby showing reversible error, and it appeared that when the bill was settled the court’s attention was not called to such modification of the instruction, and he did not notice that the bill showed it, the record can be returned to the trial court to correct the error, if any, under Comp. Laws, §4938 (Laws 1897, Chap. 54), providing that the court may amend any pleading, process, or proceeding by correcting any mistake therein.</p> <p>3. Comp. Laws, § 4938 (Laws 1897, Chap. 54) provides that the trial court may, in its discretion, at any time within one year after notice thereof, relieve a party from any proceeding taken against him through his mistake, inadvertence, or excusable neglect. Section 5093 provides that the trial court may fix a time for allowing exceptions after the time limited therefor has expired. Within a year after a bill of exceptions was settled and appeal perfected, application was made for the return of the record to the trial court to correct the bill of exceptions, i. thi, that the application was not made too late.</p> <p>4. The record will be returned to the trial court for the purpose of allowing the trial judge to consider an application to correct the bill of exceptions after the case has been submitted to the supreme court without oral agreement, under rule 21, no consideration having been given the appeal on the merits.</p> <p>5. After an appeal has been perfected, and the original record transmitted to the supreme court, the trial judge cannot amend the bill of exceptions without having the record remanded for that purpose.</p>