Wyoming Loan & Trust Co. v. W. H. Holliday Co.

(Wyo.) 6 Pac. Rep. 721;1 Wolcott v. Bachman, (Wyo.) 23 Puc. Rep. 72.2 The eighth assignment complains of the overruling of the motion for a new trial, and this is the sole question presented by the record. The only matters complained of in the motion for a new trial which are relied upon by the plaintiff in its brief are that the decision is not sustained by sufficient evidence, and is contrary to law, and that there is error in the assessment of the recovery. To determine either of these questions in this case, it is necessary that the record shall contain all of the evidence given upon the trial, and this should be made clearly to appear in the bill of exceptions. When error does not affirmatively appear in the record, the presumption is in favor of the decision of the trial court; and, unless the record contains all of the evidence, this court cannot determine any question, the decision of which necessarily requires an examination of all the evidence. It is contended by the defendant in error that the record does not purport to contain all of the evidence. The statement of the bill of exceptions is: "And this was all the testimony offered by either party upon the trial of the said cause. Testimony embraces only the declarations of witnesses made under oath or affirmation, (Rev. St. Wyo. §§ 2609, 2610; Bouv. Law Dict. tit. "Testimony;") while "evidence, in legal acceptation, includes all the means Ante, 335.

1Ante, 144.

by which any alleged matter of fact, the
truth of which is submitted to investiga-
tion, is established or disproved, " (1
Greenl. Ev. § 1.) Testimony is but one of
the several instruments of evidence, and
cannot be considered the equivalent there-
of; for evidence embraces not only testi-
mony, but also private writings and pub-
lic documents. Abb. Law Dict. tit. "Tes-
timony;" Thomp. Trials, § 2784; Telephone
Co. v. State, 12 N. E. Rep. 136.8 Even if
the word "testimony" were as broad in
its meaning as the word "evidence," the
record in this case is subject to the further
objection that the bill of exceptions only
purports to contain "all the testimony
offered by either party," and does not
show how much or what portion of the
testimony so offered was in fact admitted
and heard by the court. "It is not enough
that it should have been offered; it should
also have been admitted." Thomp.
Trials, § 2784; Garrison v. State, 11 N. E.
Rep. 2.4 The authorities are uniform in
holding that the statement should be, in
effect, that the bill contains all the evi-
dence given upon the trial of the cause.
We think the statement in this case falls
far short of that requirement. An exam-
ination of the record discloses no error in
the decision of the court below. The judg-
ment is therefore affirmed.

CORN and SAUFLEY, JJ., concur.
110 Ind. 203.
110 Ind. 145.

STATE DECISIONS.

(391)*

CASES

ARGUED AND DETERMINED

IN THE

SUPREME COURT

OF THE

STATE OF WYOMING.

NOVEMBER TERM, 1890.

STATE ex rel. SCHOOL DIST. No. 1 OF CONVERSE COUNTY v. CLAY, County Treasurer, et al.

MANDAMUS

(November 22, 1890.)

- JURISDICTION OF SUPREME COURT -
CONSTITUTIONAL LAW.

Lacey & Van Devanter, for relator. A. C. Campbell, for respondents.

CONAWAY, J. This is an application for a writ of mandamus running to the defendants, the treasurer and the board of county commissioners of Converse counConst. art. 5, § 3, provides that "the su- ty. The jurisdiction of this court to ispreme court shall have original jurisdiction in quo warranto and mandamus as to all state offi-sue the writ of mandamus is conferred by cers, and in habeas corpus. The supreme court section 3 of article 5 of the constitution, shall also have original jurisdiction to issue in the following provisions: "The suwrits of mandamus, review, prohibition, habeas preme court shall have original jurisdiccorpus, certiorari, and other writs necessary tion in quo warranto and mandamus as and proper to the complete exercise of its appel to all state officers, and in habeas corpus. late and revisory jurisdiction." Held, that the The supreme court shall also have original supreme court has power to issue writs of man-jurisdiction to issue writs of mandamus, damus, except as to state officers, only in cases review, prohibition, habeas corpus, certiowhere such writs are necessary to the complete exercise of such appellate and revisory jurisdiction, since general words, followed by words of special meaning, are limited in their application to matters of the same nature, included in the meaning of the specific words, and since any other construction would render the first clause of the section redundant, and of no effect.

rari, and other writs necessary and proper to the complete exercise of its appellate and revisory jurisdiction." It is the duty of this court to ascertain from this language and to enforce the intention of the framers of the constitution in formulating and of the people in adopting these proApplication by school district No. 1 ir visions, in so far as they relate to manthe county of Converse for mandamus damus. There is a familiar rule of conto Charles E. Clay, as treasurer of Construction to the effect that general words, verse county, and the board of county commissioners of Converse county. De

nied.

393

followed in the same connection by words of limited and specific application and meaning, are limited in their application

394