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necessary to enable the court to properly review it. If he fails to do so, the appellee or defendant in error may produce in court such transcript any time after such return day and if it appear thereby that an appeal has been allowed in the cause, or from the record of the court, that a writ of error has been sued out, the court shall upon such transcript affirm the judgment, unless good cause be shown to the contrary. On appeals and writs of error, the appellant and plaintiff in error shall assign errors and serve a copy of such assignment of error on the opposite party in the same manner that copies of pleadings are served, and file a copy with the clerk of the supreme court on or before the return day to which the cause is returnable, which said assignment of errors shall be written on a separate paper and filed in the cause, and shall be also copied into the brief of appellant or plaintiff in error, and each error relied upon shall be stated in a separate paragraph. In default of such assignment of error and filing the same the appeal or writ of error may be dismissed and the judgment affirmed, unless good cause for failure be shown. Unless exception is tiled or taken to the assignment of error the opposite party shall be deemed to have joined in error, upon the assignment of error so filed.
Sec. 22. The Record Proper.-All entries, orders and rulings of record in the clerk's office, and all papers regularly filed in a cause with the clerk of the district court shall be considered a part of the record proper. And in all cases the transcript of record shall contain a copy of the tinal judgment, opinion of the court below when filed, notice of appeal, writ of error and citation thereon, together with the return of service, bond on appeal, and a certificate of the clerk of the district court as to all costs in the case in the district court including the clerk's and stenographer's fees for the transcript of record and bill of exceptions.
Sec. 23. The Praecipe For Record.Either party to a cause, after the trial thereof, may file a praecipe for a transcript of the record of such cause with the clerk of the district court, who shall thereupon prepare such transcriptin accordance with said praecipe, and if the pleadings or judgment show a general appearance of the defendant in person, or by attorney, the citation and returns need not be copied into such transcript. The clerk of the district court shall be allowed ten (10c) cents per folio for making out and certifying such copy of the record and three (3c) cents per folio for each additional copy thereof required, and he shall be allowed two ($2.00) dollars for certifying the bill of exceptions which may have been furnished by the stenogra
pher to be paid for by the party suing out the writ of error or appeal.
Sec. 24. When Testimony is part of Record Without Bill of Exceptions.-In all actions tried without a jury the testimony taken before a court or that taken by a referee, the transcribed notes of the stenographer in such cases, properly certified by the court or referee, and all motions, orders or decisions made or entered in the progress of the trial of any such action shall become and be a part of the record for the purpose of having the cause reviewed by the supreme court upon appeal or writ of error, without any bill of exceptions. And it shall not be necessary to have any bill of exceptions settled, signed or sealed, in order to make any of such matters a part of the record in cases so tried. It shall not be necessary to make a motion for a new trail in any case tried by the court without a jury.
Sec. 25. The Bill of Exceptions.-All other proceedings taken in the trial of a cause not contemplated by Section 22 of this act and proper and material shall be made a part of the record by a bill of exceptions to be signed, sealed and settled as in this act provided.
Sec. 26. Making up Bill of Exceptions and Settling Same. In all cases tried by the court, either with or without the intervention of a jury, the testimony, all rulings of the court, objections made and exceptions taken on the trial shall be taken down by the court stenographer. After such trial any party to the action may require the court stenographer to transcribe the whole or any part of his stenographic notes and when the stenographer shall have transcribed his notes he shall file the same in the office of the clerk of the court in which the action in which they were taken was tried, and thereupon, either party to said cause desiring to have the same or other matters under Section 25 of this act embodied in a bill of exceptions may give five (5) days notice to the opposite party of his intention of applying to the judge of the court in which said cause was tried, to have the judge of said court signed and seal the same in proper form, as a bill of exceptions. Upon such notice, unless said transcript or other matters tendered shall be shown to be incorrect, and in that case after its correction, the judge or his successors, shall settle sign and deliver the said transcript as a bill of exceptions, adding thereto such additional matters properly sought to be added. For the purpose of having said bill of exceptions signed and sealed, it shall not be necessary to make out a new copy of the notes of said stenographer or other matters tendered but the same may be referred to and identified as a part of the bill of exceptions; nor shall it be necessary to serve a copy thereof with the notice. Provided, That in cases tried without a jury the testimony as transcribed by the stenographer may become a part of the record as provided in Section 24 of this act.
Sec. 27. Compensation of Stenographers. The stenographer shall be compensated for taking down testimony (except testimony taking in term time, where the court stenographer acts) at the rate of seven ($7.00) dollars per day, and shall be allowed for transcribing the same tifteen (150) cents per folio for the original copy, and three (3c) cents per folio for each additional copy.
Sec. 28. When Stenographer's Notes not Available. When for any reason a transcript of the stenographer's notes taken upon the trial of any cause cannot be obtained, a statement of the facts of the case may be prepared and submitted to the court together with the rulings of the court on the admission or rejection of evidence, when excepted to, and the same shall be settled and signed by the court below in the same manner as bills of exception were formerly settled when no stenographer was used, and the same shall thereupon become a part of the record in such cause in the supreme court.
Sec. 29. May Take up a Portion of the Record by Agreement.— The parties may by agreement in writing, with the approval of the judge, direct the clerk of the district court in making up the transcript, for the supreme court, to omit therefrom any designated portion of the proceedings pot deemed material to the disposition of the cause in the supreme court and in such case the transcript of the record shall not embrace such portions of the proceedings.
Sec. 30. May Take up Agreed Statement of Case and Facts Proven.—The parties may, without the necessity of setting out all the proceedings at length, agree upon such agreed statement of the case and of the facts proven, with or without copies of any part of the proceedings, as shall, in their opinion, enable the appellate court to determine whether there has been any error in the judgment; and if the judge shall approve and sign such statement the same should be filed among the papers of the cause and shall constitute a part of the record, and on appeal or writ of error shall be copied into the transcript in lieu of such proceedings themselves.
Sec. 31. Transcript May Contain Only a Portion of Entire Record or Evidence, Without Agreement.-Whenever it is desired to review the action of the trial court upon any point or points not necessarily involving all of the record or evidence in a cause and no agreement between the parties had been
made as provided in Sections 29 and 30 of this act, the appellant or plaintiff in error shall file in the office of the clerk of the district court a praecipe setting forth the questions he desires to have reviewed, and those portions of the record and proceedings he deems necessary to such review; and he shall be bound in the supreme court by the praecipe so tiled. If in such cases the opposite party desires to take up more of the record than is called for in such praecipe he may have the additional parts of the record certified by the clerk and by him certified with the rest of the record, and cause the same to be filed in the supreme court at his own expense in the tirst instance and if the supreme court shall hold that the same was necessary to a proper hearing of the case, such expense shall afterwards be taxed in the supreme court as other costs in the case. When the transcript of record trans mitted to the supreme court, upon an appeal or writ of error shall contain portions of the record not necessary for a proper determination of the questions or issues to be reviewed by the supreme court, the costs of transcribing or printing such unnecessary portion of the record will be taxed against the party procuring the same.
Sec. 32. Certiorari for Diminution of Record, When Made.- No certiorari for diminution of the record shall be allowed in any cause unless a motion therefor shall be made in writing, and the facts on which the same is founded shall, if not admitted by the other party, be verified by affidavit, and all motions for such certiorari shall be made on the first day of the term of the entry of the cause, otherwise the same shall not be granted unless upon such special cause shown to the court accounting satisfactorily for the delay.
Sec. 33. When a Diminution of the Record May be Supplied.-The appellant or plaintiff in error shall not be heard to suggest a diminution of the record or to ask for a certiorari to supply such diminution in any case where such appellant or plaintiff in error has caused to be certified to this court either by agreement or under Section 19, less than the entire record, unless such suggestion or motion shall be made on the first day of the term to which the appeal or writ of error is returnable, and shall be accompanied by an affidavit setting forth reasons satisfactory to the court for the omission of the same from the transcript; mere neglect to include the desired portion of the record in the praecipe shall not be sufficient cause for the award of the certiorari applied for. Whenever in any cause now or hereafter pending in the supreme court any documentary exhibit admitted or offered in evidence and filed in the trial court has been or shall be omitted from the record or bill of exceptions by reason (without the fault of the appellant or plaintiff in error) of its having disappeared from the files in the proper clerk's office or has been lost or mislaid, and no copy of such exhibit was in the clerk's office or could be furnished by the clerk, the supreme court, on the hearing of such cause on appeal or writ of error, shall admit and consider as a part of the record therein, the substance of said exhibit as may satisfactorily appear to the court by a certificate of the trial judge.
Sec. 34. Printing the Record.—Appellants or plaintiffs in error in civil causes removed to the supreme court for review, now or hereafter pending shall not be required to print the record nor any part thereof unless the amount of the judg. ment to be reviewed or the value of the property in dispute shall exceed one thousand ($1,000.00) dollars. The clerk of the supreme court shall tax as costs for printing the transcript of record its actual reasonable cost, together with ten (10c) cents per folio of one hundred words for the original transcript of the stenographer's notes and of the record prepared by the clerk of the district, and three (30) cents per folio for one additional copy thereof, which sums are hereby fixed as the compensation of stenographers and clerks for preparing transcripts and copies thereof.
Sec. 35. Filing Copies of Transcript When Record not Printed.-In all cases where printing of the record in the supreme court is not required by this act it shall be the duty of the appellant or plaintiff in error to file with the clerk three copies of the transcript of record legibly type-written in double-space type-writing, one copy to be retained by him in his office and the others for the use of counsel on either side, who may withdraw the same temporarily, but they shall be returned at the time the case is heard.
Sec. 36. When Return Day and Time for Settling Bills of Exception may be Extended. The trial judge or his successor, upon good cause shown may extend the return day of appeals or writs of error, and the time for settling and signing bills of exception at any time before the opposite party has filed a transcript and had the case affirmed, and when such extension is made so that the record cannot be filed in the supreme court within the time required by law for the regular return day it shall be the duty of the clerk of the district court to send to the clerk of the supreme court a certified copy of the order of the trial judge extending such time.
Sec. 37. Review of Exceptions Taken.-Exceptions to the decisions of the court upon any matter of law arising during the progress of a cause must be taken at the time of such decision and no exceptions shall be taken in any appeal to