Patrick v. Weston

Per Curiam.

In the court below defendant in error as •plaintiff recovered a judgment for upwards of #5,000 upon a partnership accounting. Plaintiffs in error desire to have the proceedings of the lower court fully reviewed in this court. They are, however, precluded from having the evidence reviewed upon the record as it now stands, for the reason that the bill of exceptions does not show that any exception was reserved to the findings and judgment of the trial court, although the record proper does recite that upon the rendition of judgment “ the defendants excepted to the findings and judgment of the court and prayed an appeal to the supreme court, which was allowed,” etc. The exceptions cannot be preserved in this manner. Rutter et al. v. Shumway, 16 Colo. 95 ; German National Bank v. Elwood, 16 Colo. 244 .

*74 It appears that since the trial in. the court below there has been a change in the personnel of the judge of the district court of Lake county, so that the application to amend must of necessity come before his successor in office. This, however, presents no insuperable objection to the proposed amendment, it being an amendment to the record, and one that the court, and not the judge, may make. Pleyte v. Pleyte, 14 Colo. 593 ; Pleyte v. Pleyte, 15 Colo. 44 ; Horton v. Smith, 46 Ill. App. 241 ; Baker v. Kansas City Ft. S. &. M. R. Co., 26 S. W. Rep. 20 .

The motion for leave to withdraw the bill of exceptions for the purpose of presenting the application to amend to the district court will be granted.

Motion sustained.