Laws

Freer, etc, C O 64 Post Date: Tue, 29 Jul 2008 13:14:04 +0000
Mon- tana Lumber, etc, Co v Howard, 10 Mont 290 2 Georgia Pusey v Sweat, 92 Ga 809; Pendley v State, 87 Ga 186; Anderson v Faw, 79 Ga 558; Rogers v Roberts, 88 Ga 150; Aiken v Hil- ton, 66 Ga 245; Masland v Kemp, 80 Ga 365; American Freehold, etc, Co v Candler, 80 Ga 366; Lawrence v Monticello, 65 Ga 298; McBride v Beckwith,67 Ga 764; Parmelee v Sa- vannah, etc, RCo, 72 Ga 216; Harris v Butler, 72 Ga 203; Green v State, 74 Ga 373 Iowa Conrad v Baldwin, 3 Iowa 208 Kansa S Linton v Frazier, 29 Ka N 20 In Georgia the certificate of the judge or clerk must conform to the requirements of the Act of Novem- ber, 1889, prescribing the terms of the certificate to the bill of exceptions which he is to sig N Gresham v, Turner, 88 Ga 160; Rogers v Roberts, 88 Ga 150 Where the bill is corrected the cer- tificate should be the same, but a sub- stantial compliance is sufficient. Pusey v Sweat, 92 Ga 809 Instance S A certificate of a clerk's successor " that to the best of my knowledge and belief the within bill is the original bill," etc, was held in- valid, the statute requiring him to certify that it was the "true bill," etc Aiken v Hilton, 66 Ga 245 So a judge's certificate which stated, " I do hereby that," etc, " are true," leaving out the word " certify," was held fatally defectiv e Owensby v Thompson, 69 Ga 773 Effect of Defective Certificat e The signature to a certificate substantial- ly different from the statutory pre- requisites is equivalent to a failure to sign at al L Anderson v Faw, 79 Ga 558; Graham v Dahlonega Gold Mi N Co, 78 Ga 356 Where the certificate was interline- ated so as to change it substantially, the bill of exceptions was rejecte d Parker v Walker ( Ga), March term, 1891, referred to in Pusey v Sweat, 92 Ga 809 What Improperly Include d It is ir- regular for the judge to include in his certificate a statement of any additional fact or evidence not included in the bill of exceptions or brief of evidence filed in support of a motion for new tria L Dollner v Williams, 29 Ga 743 b BY CLER K The bill of exceptions must also be certified by the clerk to be part of the record in the caus e 1 Original and Cop Y The original bill should be certified up unless statutes otherwise prescrib e 2 In practice a copy is usually sent u P 3 X TIME FOE SETTLEMENT AND SIGNATURE 1 In Genera L It is a well settled rule of procedure that the bill of exceptions must be settled and signed within the time required by law, 4 or it Error not Certifie d Grounds of er- ror not certified will not, of course, be considere d Green v State, 74 Ga Date Presumptio N Where not dated the certificate will be presumed to have been made on the day of the ac- knowledgment of service by counsel for defendant in erroRSwatts v Spence, 68 Ga 496; Doe v Peeples, i Ga I Where there is no statement in the record to show that the presiding judge delayed certification of the bill of exceptions after its tender, the date of the certification must be deemed the date of tender, and if after the time required by law, the appeal will be dismisse d Dismuke v Trammell, 64 Ga 429; Monticello v Lawrence, 62 Ga 672 For M It is not ordinarily essential that the judge should call the paper a bill of exceptions in his certificate, or order therein that it be made part of the record, if it appears that it was intended as such and otherwise an- swered the purpos e Williams v Her- sey, 17 Ka N 20 Estoppe L Where an adverse party adopts a bill as corrected, signed, and certified, he impliedly adopts it as correct, and he cannot thereafter ap- ply for a mandamus to compel the omission of the correction, or the sig- nature of another certificat e Rogers v Roberts, 88 Ga 150 Ti Me And where a time is defined within which the judge must certify the bill, compliance is mandator Y Monticello v Lawrence, 62 Ga 672 So where the bill must be certi- fied within thirty days after the ad- journment for the term, and there is no date of adjournment stated in the record, and the certificate is dated thirty-one days after the decision held, too late, even although the bill recites presentation within thirty day S Monticello v Lawrence, 62 Ga 672 1 Patterson v State, 68 Ga 292 Conflicting Bill S Where a bill of ex- ceptions signed by the trial judge was presented, but the certified record contained another bill which the judge stated to be the true one, the latter prevaile d Lecatt v Strang, 2 Stew (Ala) 230 Where the statute allows the appel- late court to reorder certification on no- tice to the adverse party and motion, if it is shown that the bill is the origi- nal one, but certified as a copy, it may be sent back for corrected certificat e Martin v Copeland, 77 Ga 374; Pol- lard v King, 62 Ga 103; Coleman v Carhart, 74 Ga 392; Erie City Iron Works v Angier, 66 Ga 634; Middle- brooks v Wilcox, 58 Ga 599 2 Tarver v Rankin, 3 Ga 214; Fuller v State, 14 Ga 268 3 Heard v Heard, 8 Ga 382 Original Bil L Where the original bill is sent up to the Supreme Court, the clerk must certify that it is the original bil L Aultman v Patterson, 14 Neb 57; Neal -v State, 65 Ga 300; Martin v Copeland, 77 Ga 374 Illinoi S Under the statute (Ses S Laws 1887, 147) the original bill may be incorporated in the transcript of the record by agreement of the partie S Obermann Brewing Co v Adams, 35 111 App 136 When disconnected from the record without certification by the clerk, or connected by stipulation of parties, it is a nullit Y Obermann Brewing Co v Adams, 35 111 App 136 Original Paper S Original papers properly included in the bill cannot, even by consent, be presented in the appellate court unless a copy would not present the points as based on the physical characteristics of the original paper S Trustees of Schools v Welchley, 19 111 64; Illinois Cent RCo v Gilchrist, 9 111 App 135; People v Coultar, 9 111 App 39; Magill v Brown, 98 111 235 Georgia Hardin v Swann, 66 Ga 244; Sparrow v Pate, 67 Ga 352; West- ern, etc, RCo v State, 69 Ga 524; Joseph v East Tennessee, etc, RCo, Q2 Ga 332; Thompson v McGhee ( Ga, 1894), ig S E Rep 32; Forsythz'. Freer, etc, C O 64 Ga 281 ; Cloudis v Tennes- see Bank, 6 Ga 481; Russeil v March, 6 Ga 491; Justices, etc, v Barrington, 6 Ga 578; Huff v Brantley, 66 Ga 599; State v Powers, 14 Ga 388 Illinoi S Marseilles v Rowland, 136 111 84 Indiana Wood v Ohio Falls Car Co, 136 Ind 598; Rigler v Rigler, 120 Ind 433; Orton v Tilden, no Ind 131; Buchart v Burger, 115 Ind 123; Shewalter v Bergman, 123 Ind 156; Plymouth v Fields, 125 Ind 323; White v Gregory, 126 Ind 95; Louis- ville, etc, RCo v Kane, 120 Ind 140; Heath v State, 101 Ind 512 Kansa S Martin v Southern Ka N RCo, 51 Ka N 162 KentucKy Johnson v Stivers, 95 Ky 128 Massachusett S Nye v Old Colony RCo, 124 Mas S 241; Cooney v Burt, 123 Mas S 579 Minnesota Van Brunt, etc, Mfg Co v Kinney, 51 Min N 337 Nebraska State v Walton, 38 Neb 496 Ohio Miller v Cincinnati, 47 Ohio St no; Finley v Whitley, 46 Ohio St 524;-Stuckey v Bloomer, 2 Ohio CiRCt Rep 541 Wyoming France v Omaha First Nat Bank, 3 Wyoming 187 United State S Hanna v Maas, 122 U S 26; Herbert v Butler, 97 U S Motion to Settl e A motion to settle cannot be entertained after the expira- tion of the statutory ti Me Van Brunt, etc, Mfg Co v Kinney, 51 Min N 337 1 Illinoi S Magill v Brown, 98 111 239; Hance v Miller, 21 111 636; Burst v Wayne, 13 111 664 Indiana La Rose v Logansport Nat Bank, 102 Ind 332; Joseph v Mather, no Ind 114; Orton v Tilden, no Ind 139; Robinson -v Anderson, 106 Ind 152; Terre Haute, etc, RCo v Bissell, 108 Ind 113; Ryan v State, 6 Ind App 196; Samples v State, 2 Ind App 395; McCormick Harvesting Mac H Co v Maas, '121 Ind 132 Compare Pugh v State (Ohio, 1894), 36 N E Rep 783 Ohio In Ohio a bill of excep- tions taken at the trial term or with- in thirty days thereafter, but not taken until a motion for new trial is overruled or a subsequent term, is no part of the recor d Finley v Whitley, 46 Ohio St 524 West VirginiaUnder the provision of Code 1891, 9, C 131, allowing a bill of exceptions to be made within thirty days after the term, is applicable to criminal as well as civil case S State v McGlumphy, 37 W Va 805 Where the bill is not made until after such time, it is no part of the recor d State z;.

Autor of the post: Undefined

John- son v Washburn, 98 Post Date: Tue, 29 Jul 2008 12:54:10 +0000
McGlumphy, 37 W Va 805; Welty v Campbell, 37 W Va 797- Texa S And in Texas a bill of excep- tions to be considered by the appellate court must be approved by the trial judge and filed in the trial court dur- ing term time and within ten days after the conclusion of the tria L Frisby v State, 26 Tex App 180; Sabine, etc, RCo v Joachimi, 58 Tex 454; Blum v Schram, 58 Tex 528; Texas, etc, RCo v McAllister, 59 Tex 362; Lockett v Schurenberg, 60 Tex 611; Gulf, etc, RCo v Holliday, 65 Tex 518; Ross v Mc- Gowen, 58 Tex 603; Shubert v State, 20 Tex App 320; McDow v State,- 10 Tex App 98; Harrison v State, 16 Tex App 325 The rule is the same both in civil and criminal case S Morris v State, 17 Tex App 660 The " conclusion " of the trial means after verdict or after overruling mo- tions for new trial or in arrest of judgment, where the same are file d Exon v State (Tex Cri M App, 1894), 26 S W Rep 1088 Georgia In Georgia in appeals in injunction cases bills of exceptions must be tendered and signed within twenty days from the decisio N Rob- erts v Leonard, 62 Ga 209 Excuse for Untimely Bil L A certifi- cate of the chancellor that he was ab- sent from home until the day when the " fast " bill of exceptions in an injunc- tion case should be signed, is no ex- cuse Sewell v Edmonston, 66 Ga 353 The practice as applicable to bills of exceptions in general is not applicable to such bill S Markham v Huff, 72 Ga 106 2 Construction of Statute S Statutory regulations defining the time within which the bill must be presented, settled, or signed are generally regarded as mandatory, 1 and cannot be extended by a judge or court without express statutory authorizatio N 3 Computation of Ti Me In computa- tion of time allowance for signing, filing, etc, bills of exceptions, Sundays should be counted, Wilkinson v Cas- tellow, 14 Ga 122; unless the last day falls on a Sunday, when the act required may be done on Monda Y Bacon v State, 22 Fla 46 1 Wood v Brown, 8 Ala 563; Whitworth v Sour, 57 Ind 107; Vanness v Bradley, 29 Ind 388; McElfatrick v Coffroth, 29 Ind 37; Vandoren v Kimes, 29 Ind 582; Roloson v Herr, 14 Ind 539; New Albany, etc, RCo v Wilson, 16 Ind 402; Harrison v Price, 22 Ind 165; Earl v Dresser, 30 Ind n; Thompson v Eagleton, 33 Ind 300; Kirby v Bowland, 69 Ind 290 Notice of Signatur e So where, as in Georgia, notice that the bill has been signed must be served on the adverse party within a defined time, the stat- ute is mandator Y Jones v Daniel, 66 Ga 246; Haygood v Neal, 6 Ga 452; Jefferson v Columbus, 7 Ga 181 "Adjournment." The day of the final adjournment of the trial court is the "end of the term" within the meaning of the statute limiting the time within which a bill may be signe d Jones v Williams, 62 Mis S 183 Alabama A statute excluding judg- ments from the control of the trial court a certain number of days after rendi- tion does not necessarily limit the time for settlement of a bill of exceptions, as it is not an exercise of control over the judgment by the trial court. John- son v Washburn, 98 Ala 258; Tennes- see, etc, RCo v Danforth (Ala, 1893), 13 So Rep 51 KentucKy Under Civ Code Ken- tucky, 772, providing that the Louisville Chancery Court has such control over its judgments for sixty days as circuit courts have over their judgments during the term in which they are rendered, "and section 334, declaring time may be given to prepare a bill of exceptions, but not beyond a day in the succeeding term to be fixed by the court, and that the Jefferson Common Pleas court shall have control over its judgments for the same period as the Louisville Chancery Court " held, that neither of such courts has power to extend the time for preparation of a bill of exceptions beyond 120 days after an order over- ruling a motion for new tria L John- son v Stivers, 95 Ky 128; Cavanaugh v Corckran, n Ky L Rep 855: Cain v Cain, 12 Ky L Rep 635; Bannon v Moran, 12 Ky L Rep 989; Shroder v Wilhite, u Ky L Rep 954 And section 334 amending Civil Code Ken- tucky, providing that if the judge does not preside or court is not held, time shall be given until the next term to prepare the bill, does not apply when within the 120 days there was nearly a month in which the court sat.

Autor of the post: Undefined

Where the time is defined Post Date: Tue, 29 Jul 2008 12:38:20 +0000
John- son v Stivers, 95 Ky 128 Nebraska The time within which a bill of exceptions may be settled in Nebraska is held to begin to run from the final adjournment of the term of court at which the cause was decided, and not from the date of the formal entry of the judgment by the clerk upon the court journa L State v Hope- well, 35 Neb 822 In Michigan the time for settlement of the bill of exceptions begins to run from the date of the rendition of ver- di Ct Rayl v Circuit Judge, 91 Mich 5- 2 Wood v Brown, 8 Ala 563; Har- din v Swann, 66 Ga 244 Rule in Criminal Caee I In criminal cases the courts incline to hold the statute defining the time for prepara- tion of a bill as directory rather than mandator Y Thus in People v Wopp- ner, 14Cal437, it was said of a code provision of California requiring a bill of exceptions to be made within ten days after the trial: " We think that the statute directing a statement to be made within ten days, and signed by the judge in a criminal case, is directory merely; the phraseology is different from that of the practice act, in refer- ence to like provisions in civil cases, and the reason of the rule is likewise different. It would be holding the rule with great rigor to hold a prisoner absolutely concluded of his rights by the failure of the judge to settle or sign a statement within a limited ti Me" See also People v 3 Rule of Court. Where the time is defined by a rule of court the trial judge may, at discretion, disregard the rule and sign the bill after its expiration, 1 if within the time named in the statut e 2 4 After Appeal Take N It is immaterial that a bill of exceptions is settled and signed after an appeal has been taken, where otherwise authenticated in ti Me 3 5 At the Tria L Under strict common-law practice each ex- ception should be reduced to the form of a bill when taken, and tendered, settled, and signed by the trial judge on the tria L 4 Lee, 14Cal510 And in People v White, 34Cal183, where the bill was not signed until nearly a year after the trial, the court refused to strike it out or examine the reasons of the trial judge for his action, as they were pre- sumed sufficient.

Autor of the post: Undefined

It is not necessary Post Date: Tue, 29 Jul 2008 12:20:12 +0000
In Nevada the same construction has been applied to statutes limited in term S State v Salge, i Nev 455; State v Baker, 8 Nev 141 Before Eefere e Where a case is re- ferred to and heard by a referee, ex- ceptions to the rulings of the referee made in the case should be signed and delivered with the report. De Long v Stahl, 13 Ka N 558; Phelps v Pea- body, 7Cal50; Dinsmore v Smith, 17 Wi S 20 Where a rule of court does not re- quire it, the order of reference should require notice to be given by the ref- eree of the completion of his report to each party a reasonable time before its filing, in order to give opportunity for the preparation and presentation of a bill of exception S De Long v Stahl, 13 Ka N 558 After the referee has filled his report he cannot sign a bill of exceptions, as he is then fttnctus of- fici O Voorhis v Voorhis, 50 Barb ( N Y) 119; Niles v Price, 23 How Pr ( N Y SupeRCt) 473; Indiana Cent RCo v Bradley, 7 Ind 49 1 Saulsbury v Alexander, i Mo App 209; Miller v St Louis RCo, 5 Mo App 471; Marye v Strouse, 5 Fed Rep 494 2 Saulsbury v Alexander, I Mo App, 209 3 Patchen v Keeley, 19 Nev 404; James v Leport, 19 Nev 174; State v Dodson, 72 Mo 284; Carter v Prior, 78 Mo 222, overruling State v Musick, 7 Mo App 597; Reay v Butler, 69Cal572; Jackson v Belleview, 30 Wi S 250 Under English practice, where a writ of error was sued out before a bill of exceptions was signed, the exceptions were waived and the bill was a nullit Y Tid d Pr 861; Brown v Bissell, i Doug L (Mich) 273 In Williams v Taylor, 6 Bin g 512, 19 E C L 152, after error brought, a bill of exceptions which had been previously sent to defendant's attorney was settled, and on a special application to the Superior Court (ex- chequer chamber) it was allowed to be tacked on the record there upon term S In Arkansas it has been held that papers filed after an appeal taken and signed by the proper judge, purport- ing to contain testimony taken on the trial, cannot be regarded as constitut- ing any part of the recor d Gray v Nations, i Ark 557 In Indiana it was held that the bill of exceptions must be signed by the trial judge before the transcript is certified op appeal, Co bring the evidence into the recor d Hughes v Hughes (Ind 1894), 39 N E Rep 45 4 Arkansa S Governor v Evans, i Ark 360 California Central Pac RCo v Pearsen, 35Cal257 Georgia Low v Goldsmith, R M Charlt ( Ga)288 Illinoi S Hake v Strubel, 121 111 321; Clemson v Kruper, i 111 210; Swafford v Dovenor, 2 111 165; Gil- more v Ballard, 2 111 252; Leigh v Hodges, 4 111 15; Gibbons v Johnson, 4 111 61; People v Pearson, 3 111 189 KentucKy Hawkins v Lowry, 6 J J Marsh (Ky) 246; Hollowell v Hollowell, i TB Mo N (Ky) 131; Givens v Bradley, 3 Bib b (Ky) 195 Massachusett S Joannes v Under- wood, 6 Allen (Mas S) 241 Missour I Mattingly v Moran- ville, ii Mo 604; Consaul v Lidell, 7 Mo 256; Davis v Burns, i Mo 264 New Jerse Y Donnelly -v State, 26 N J L 463; State v Holmes, 36 N 6 After the Trial A GENERALL Y Under modern practice the exceptions must be noted when taken, but leave may be given to reduce them to writing and tender them for signature after the tria L 1 ^ In some cases the exceptant is held to have a legal J L 62: Agnew v Campbell, 17 N J L 291; Wilson v Moore, 19 N J Li86 New York Sikes v Ransom, 6 John S ( N Y) 279; Midberry v Col- lins, 9 John S ( N Y) 445; Law v Mer- rills, 6 Wen d ( N Y)268; Shipherd v White, 3 Co W ( N Y) 32; Lanuse v Barker, 10 John S ( N Y) 312 Pennsylvania Morris v Buckley, 8 S R(Pa) 218; Stewart v Hun- tingdon Bank, n S R(Pa) 270 Texa S Houston v Jones, 4 Tex 170 Englan d Wright v Sharpe, II Mo d 175; Pocklington v Hatton, 8 Mo d 220; Dillon v Doe, I Bin g 17, 8 E C L 381; Williams v Taylor, 6 Bin g 512, 19 E C L 152 In Montana a bill of exceptions must be taken during the trial and before the final decisio N Frost v O'Neil, 4 Mont 226 New Jerse Y It was held in Agnew v Campbell, 17 N J L 291, that a bill of exceptions must be drawn up and sealed at the trial, and that when sealed afterwards it could only be upon the mutual consent of the attorneys, or unless settled by the judges who tried the cause, in pursu- ance of an agreement made at the trial in open court to that effe Ct And in Donnelly v State, 26 N J L 465 it was held that a court of error would be justified in treating as nuga- tory bills of exceptions prepared after the tria L Nevad A Under the practice of Ne- vada a majority of the court decided, in Burns v Rodefer, 15 Nev 61, thata bill of exceptions, to be available on mo- tion for new trial or on appeal from the judgment in a civil case, must be reduced to writing and settled by the judge at or before the conclusion of the trial; otherwise it can only be brought before the court for review by a statement settled in the mode pro- vided in section 197 In criminal cases the bill may be settled after a motion made for a new trial in the cause has been decide d State v Huff, n Nev 25 Special Bill Mississipp I In Missis- sippi, where a bill of exceptions to a charge shows from its internal con- tents that it was signed before the jury retired from the box, it is sufficient. It is not necessary that it should so state explicitl Y Muirhead v Muir- head, 8 Smed M (Mis S) 211 1 Arkansa S Byrd v Tucker, 3 Ark 451 Connecticut Camp v Tompkins, 9 Con N 545 Georgia Low v Goldsmith, R M Charlt ( Ga) 288 Indiana Goodwin v Smith, 72 Ind 113; Sohn v Marion, etc, Gravel Road Co, 73 Ind 77 Kansa S State v Burrows, 33 Ka N 14; State v Smith, 38 Ka N 194 KentucKy Scott v Burrows, 13 Bus H (Ky) 450; Tweedy v Co M, 2 Mete (Ky) 378 Marylan d Thomas v Ford, 63 Md 346; Wheeler v Biscoe, 44 Md 308; Baltimore Bld g Asso C v Grant, 41 Md 564 Mississipp I Wilcox v Mitchell, 4 Ho W (Mis S) 272; Tucker v Gordon, 7 How (Mis S) 307 New York Pratt v Malcolm, 13 John S ( N Y) 320 Orego N Ah Lep v Gong Choy, 13 Oregon 205, modifying Holcomb v Teal, 4 Oregon 352 Pennsylvania Dock v Hart, 7 W S (Pa) 1 72 VirginiaMartz v Martz, 25 Gratt ( Va) 361; Winston v Giles, 27 Gratt ( Va) 530; Washington, etc, Te L Co v Hobson, 15 Gratt ( Va) 122 West VirginiaWickes v Balti- more, etc, RCo, 14 W Va 165 United State S Walton v U S, 9 Wheat.

Autor of the post: Undefined

(U S) 651; Stanton v Post Date: Tue, 29 Jul 2008 12:09:32 +0000
(U S) 651; Brown v Clarke, 4 How (U S) 4; Sweet v Perkins, 24 Fed Rep 777; Marye v Strouse, 6 Saw Y (U S) 204; U S v Carey, no U S 51; French v Edwards, 13 Wal L ( U S) 506; Hunnicutt v Peyton, 102 U S 354; U S v Breitling, 20 How (U S) 252; Stanton v Embry, 93 U S 548; Dredge v Forsyth, 2 Black (U S) Englan d Reg v Rowley, 2 Dow L N S 335; Wright v Sharp, i Sal K 288 In Hunnicutt v Peyton, 102 U S 354, it was said: "The time within which the signature of the judge must right to the signature of the bill when presented a reasonable time after the tria L 1 b NUNC PRO TUN g The bill should in such cases be signed nunc pro tune, so as to purport to be actually in form and signed during the tria L 2 Express permission to reduce after the trial need not be granted ; 3 it will be implied from the signature of the bill thereafter, although not nunc pro tune* be applied for, if within the term, is left to the discretion of the judge who noted the exception when it was mad e It may depend much upon the nature of the bill S Some require much more time for preparation than other S It is true a judge cannot be per- mitted to make up a statement of facts after the writ of error is issued, upon which the case shall be hear d" Ge- neres v Bonnemer, 7 Wal L (U S) 564 " That is quite a different matTer But when an exception has been taken at the trial and noted, reducing the excep- tion to form afterwards and attesting it is not making a new cas e It is merely verifying the case as it ap- peared on the tria L" Hunnicutt v, Peyton, 102 U S 354 "The convenient dispatch of busi- ness, in most cases, does not allow the preparation and signature of bills of exceptions during the progress of a tria L" Turner v Yates, 16 How ( U S) 14- Refusal to Suspend Tria L Since the trial court has authority to allow the time for reduction to writing, it is not error to refuse to suspend the trial, to allow the preparation of the bill of ex- ception S Anson v Dwight, 18 Iowa 241; Hanan v Hale, 7 Iowa 153; Jones v State (Tex Cri M App 1893), 23 S W Rep 793 Although where a special bill of ex- ceptions is tendered during the prog- ress of a trial, it should, if correct, be then signe d Albrecht v State, 62 Mis S 516; Jones v State (Tex Cri M App 1893), 23 S W Rep 793 Refusal not Revieivabl e The ap- pellate court cannot review a refusal of the trial court to suspend a trial to allow a bill of exceptions to be settled and signe d State v Smith, 38 Ka N 194; Robinson v Pitzer, 3 W Va 335; Stewart v Huntingdon Bank, n S R(Pa) 267; Haines v Co M, 99 Pa St 419; Morris v Buckley, 8 S R(Pa) 214 1 Livingston v Heerman, 9 Mar- tin ( La) 195 In Texas the exceptant has a legal right by statute to the allowance of a reasonable time to reduce the excep- tions to a written bil L Rev StatTex, art. 1358; Smith v State, 19 Tex App 109; Sager v State, n Tex App no; Knox v State, n Tex App 148; Brown v State, 13 Tex App 59; Ken- nedy v State, 19 Tex App 631; George v State, 25 Tex App 240 He may except to the refusal, and should disclose in his bill of excep- tions thereto the bill refuse d Ken- nedy -v State, 19 Tex App 630 So also an order refusing time to settle a bill is appealable in KentucKy Louisville, etc, RCo v Turner, 81 Ky 489- The error will not be held reversible on appeal where it appears that the exceptant subsequently obtained a bill of exception S _ Kennedy v State, 19 Tex App 630 2 Arkansa S Lenox v Pike, 2 Ark 22 Illinoi S People v Blades, 10 111 App 20; Evans v Fisher, 10 111 Marylan d Baltimore Bld g Asso C v Grant, 41 Md 564 Mississipp I Wilcox v Mitchell, 4 Ho W (Mis S) 272 New York Law v Merrills, 6 Wen d ( N Y) 268 United State S Ex p Bradstreet, 4 Pet (U S) 107; Walton v U S, 9 Wheat. (U S) 651; Stanton v Embry, 93 U S 548 Retrospectiv e Where time is granted to reduce to writing, the bill when sealed is retrospective, and re- lates back to the time of tria L State v Holmes, 36 N J L 62; Wright v Sharpe, n Mo d 175 3 Baltimore Bld g Asso C v Grant, 41 Md 564 4 Indiana Boyce v Graham, 91 Ind 422; Goodwill v Smith, 72 Ind 113; Alcom v Morgan, 77 Ind 184; Ryman v Crawford, 86 Ind 262; Cardwill v Gilmore, 86 Ind 428; Flory v Wilson, 83 Ind 391; Volger 7 During Ter M Where no statute provides otherwise, the set- tlement and signature of a bill of exceptions must generally be made before the expiration of the term at which the trial is held, 1 the reason being that the court loses control over the record with the expiration of the ter M 1 It follows from this rule that signature of the bill in vacation is usually held invali d 2 But it Clark v Lary, 3 Snee d (Tenn) 78; Staggs v State, 3 Humph (Tenn) 372- Texa S Jones v Thurmond, 5 Tex 318; Hall v Stancell, 3 Tex 400; Fire- baugh v Ward, 51 Tex 415; Farrar v Bates, 55 Tex 196; Texas, etc, RCo T.

Autor of the post: Undefined

In Virginia it is held Post Date: Tue, 29 Jul 2008 11:49:56 +0000
McAllister, 59 Tex 362; Gulf, etc, RCo v Eddins, 60 Tex 659; Inter- national, etc, RCo v Underwood, 62 Tex 22; Schaub v Dallas Brewing Co, 80 Tex 637; Missouri Pac RCo v Rabb, 3 Tex App (Civ Cas)., 38; Keeton v State, 10 Tex App 686; McCall v State, 14 Tex App 362; Heffron v Pollard, 73 Tex 98; Brack v McMahon, 61 Tex 2; Willis v Do- nac, 61 Tex 589; White v Harris, 85 Tex 49 VirginiaWinston v Giles, 27 Gratt ( Va) 530 West VirginiaState v McGlum- phy, 37 W Va 805; Wickes v Balti- more, etc,, RCo 14 W Va 157; Qua- ker City Nat Bank v Showacre, 26 W Va 53; Welty v Campbell, 37 W Va 797 United State S \J S v Carey, no U S 51; Sweet v Perkins, 24 Fed Rep 777; Marine City Stave Co v Herreshoff Mfg Co, 32 Fed Rep 823; U S v Train, 12 Fed Rep 852; Mul- 3er v Ehlers, 91 U S 249; Hunnicutt v, Peyton, 102 U S 333; Whalen v Sheridan, 5 Fed Rep 436; French v Edwards, 13 Wal L (U S) 506; Ex f Bradstreet, 4 Pet (U S) 102; Greenway v Gaither, Taney (U S) 227 1 Winston v Giles, 27 Gratt ( Va) The Record need not therefore show affirmatively that leave was given, -where the bill is reduced to writing and filed at the term at which the de- cision was rendere d Noblesville Gas, etc, Co v Teter, i Ind App 322; Wysor v Johnson, 130 Ind 270; Boyce v Graham, 91 Ind 420; Calvert v State, 91 Ind 473; Lake Erie, etc, RCo v Fix, 88 Ind 381; Volger v Sidener, 86 Ind 545; Kosciusko County v Eperson, 50 Ind 275 ; Fletch- er v State, 49 Ind 124; Ogborn v Hoffman, 52 Ind 439 ; Nichol v Thomas, 53 Ind 42; Johnson v Bell, 10 Ind 363; Jenks v State, 39 Ind i; Port v Russell, 36 Fn d 60; Harrison v Price, 22 Ind 165; Stewart v State, 24 Ind 142 Adjournment. In Virginia it is held that where a court is adjourned to a future day, a bill of exceptions cannot be then taken to a ruling made at the term which is adjourne d Wickes v Baltimore, etc, RCo, 14 W Va 157- Signature after the Ter M As signa- ture by the judge after the end of the term is discretionary, a man- damus will not issue to compel him to sign after the term, where he refuse S Sikes v Ransom, 6 John S ( N Y) 279 Exceptions to Interlocutory Decision S Exceptions to interlocutory rulings and decisions must be filed at the term at which the proceedings are had; but should remain in the trial court until a final disposition of the cause, and be brought up with the remaining exceptions on appeal from final de- terminatio N Cameron v Tyler, 71 Me 28; Daggett v Chase, 29 Me 356; Witherel v Randall, 30 Me 168; Ab- bott v Knowlton, 31 Me 77 New York In a New York criminal case, on appeal from the Court of Oyer and Terminer, it was held that the judges had no power to settle and sign a bill of exceptions after the final adjournment of the term, as all the judges must legally convene for the act, and there was no provision or practice authorizing a reconvention for that purpose alone after final ad- journment.

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2 St 258; Estabrook v Post Date: Tue, 29 Jul 2008 11:30:46 +0000
Birge v People, 5 P Ark CR Rep ( N Y)i2 2 Colorad O Jordan v Finley, 4 Colo189; Filley v Cody, 4 Colo542 Florida Webster v Barnett, 17 Fla 272; Potsdamer v State, 17 Fla 895; Bowden v Wilson, 21 Fla 165; Bush v State, 21 Fla 569 Illinoi S Hance v Miller, 21 111 636 KentucKy Biggs v M'llvain, 3 A K Marsh (Ky) 360; Freeman v Brenham, 17B Mo N (Ky) 608 Mississipp I Vicksburgh, etc, RCo v Ragsdale, 51 Mis S 462 Nebraska Mewis v Johnson Har- vester Co, 5 Neb 218 Compare State v Weaver, n Neb 163; Jeffer- son County v Saxon, 10 Neb 14 has also been held that the term may be protracted for the ex- press purpose of preparing a bill of exception S 1 8 Extension by Motio N Where, upon a motion to set aside the verdict and grant a new trial, the whole cause is continued until the next term, the bill of exceptions in the cause may be sealed and signed at any time before its expiration, 2 but not where a mere motion for new trial is continued without the caus e 3 Texa S George v State, 25 Tex App 229 At Subsequent Ter M So a bill taken at a subsequent term is too lat e State v Grant, 76 Mo 95 In Missouri Rev Stat1889, 2168, does not authorize the insertion in a bill of exceptions taken after the September term, 1891, of objections and exceptions to the action of the trial court at the September term, 1890, in overruling a motion, unless some of the alternatives provided in the sec- tion exiSt Carpenter v McDavitt, 53 Mo App 393, citing State v Ware, 69 Mo 332; Hurt v King, 24 Mo App 593; Givens v Van Studdiford, 86 Mo 149 1 Johnson v Douglass, 2 Mackey d C) 36; West z/ Rice, 4 Ka N 563 Where time may be granted, but not beyond the expiration of the term, the court ought to continue the term, upon proper application, a sufficient time for the preparation of the bill, where the cause is decided near the end of the ter M State v Smith, 38 Ka N 194 Limitation of the Rul e But even where a judge may legally hold his court open from day to day, after the active business of the term is disposed -of, in order to sign a bill of exceptions, he cannot extend one term for that purpose beyond the beginning of the next regular term, and a bill then signed is irregulaRBlake v Harlan, 75 Ala 205 Clerical Mistak e In U S v Wilkin- son, 12 How (U S) 247, a bill of ex- ceptions dated "April term," 1848, but containing proceedings occurring on a trial in May, 1849, was held, nevertheless, properly in the case where certified by the trial judge as a bill of exceptions to the last-named suit. The title was deemed a clerical mistak e KentucKy In Co M v McCready, 2 Mete (Ky) 376, it was held that even if, under adoubtful section of the code, time could be extended until a subse- ouent term to prepare and file a bill of exceptions, it could only be done by withholding a judgment or sus- pending its effect after rendition, so that the court could retain centrol over it until a subsequent ter M 2 Colorad O Gower v Chaffe, 5 Colo383 Florida Greeley v Percival, 21 Fla 428 /Hindi S People v Gary, 105 111 264; Hearson v Grandine, 87 111 116 Indiana Barnaby v State, 106 Ind 539; Jenks v State, 39 Ind I Iowa Courtney v Carr, n Iowa 299 Michiga N Adrian Furniture Mfg Co v Lane, 92 Mich 295 Missour I Gray v Parker, 38 Mo 160; Givens v Van Studdiford, 86 Mo 154 ; Riddlesbarger v McDaniel, 38 Mo 138; Henze v St Louis, etc, RCo, 71 Mo 644 Nebraska Dodge v Runels, 20 Neb 33; Wineland v Cochran, 8 Neb 528 So in Nebraska it was held that where a cause was continued after verdict, and upon a motion to set the verdict aside until the succeeding term, where a remittitur was entered and the motion overruled held, that the time for preparation of the bill did not begin to run until the decision of the motio N Dodge v Runels, 20 Neb 33 General Order of Continuanc e A mere general order of the court con- tinuing "all matters in court not dis- posed of until the next term " does not extend the time for settling a bil L Burns v Rodefer, 15 Nev 60 3 Indiana Pitzer v Indianapolis, etc, RCo, 80 Ind 569; Kelsey v Hay, 84 Ind 189; Indianapolis, etc, RCo v Pugh, 85 Ind 279; Mullaney v Indiana Nat Bank, 91 Ind 77; Hereth v Hereth, 100 Ind 35; Don- aldson v Dunn, 87 Ind 343 Nebraska Wineland v Cochran, 8 Neb 528; Donovan v Sherwin, 16 Neb 130 Ohio, Dayton v Hinsey, 32 Ohio 9 Signature after Term A ORDER EXTENDING TI Me Where the time to file is not defined by a mandatory statute, the trial court is authorized, even without statute, to extend the time for signature beyond the term by an order l or standing rule of court. 2 St 258; Estabrook v Gebhart,32 Ohio St 419 ; Pittsburg, etc, RCo v Porter, 32 Ohio St 328; Musser v Chase, 29 Ohio St 577; Morgan v Boyd, 13 Ohio St 271; Finley v Whit- ley, 46 Ohio St 526; Kline v Wynne, 10 Ohio St 228 Tennessee McGavock v Puryear, 6 Cold W (Tenn) 34 Indiana Under Rev StatInd, 626, 1881, a bill of exceptions on over- ruling a motion for new trial carries forward exceptions taken to decisions made during the tria L Barley v Dunn, 85 Ind 338; Kendel v Judah, 63 Ind 291 Bill of Exceptions to Order Granting New Tria L Where an order overrul- ing a motion for new trial is appeal- able, a bill of exceptions maybe taken thereto, although the decision be not made until a subsequent term, and no bill be taken to the error made on the tria L Coleman v Edwards, 5 Ohio St 51 Alteration of Judgment.

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Robinson v Hartridge, 13 Post Date: Tue, 29 Jul 2008 11:14:10 +0000
The subse- quent verbal alteration of an order or judgment made on approving it at a subsequent term does not continue the time for preparation of the bil L State v Orwig, 34 Iowa 112 To Show Evidenc e Where a new trial is claimed on the ground that the verdict or finding is not sustained by the evidence, or is contrary to law, the court may properly, at the time of overruling the motion, give time to prepare a bill showing what the evi- dence was, as it is pertinent to the ruling then mad e Sohn v Marion, etc, Gravel Road Co, 73 Ind 77 In Iowa it has been held that an agreement for a submission of the cause and for a decision in vacation as of the last day of the term of court named does not have the effect of ex- tending the time for filing the bill of exception S Edwards v Cosgro, 77 Iowa 428 1 Illinoi S People v Blades, 10 111 App 17; Brownfield v Brownfield, 58 111 152; Wabash, etc, RCo v People, 106 111 652; Evans v F isher, 10 111 453- Indiana Firestone v Firestone, 78 Ind 536 Iowa Claggett v Gray, I Iowa 21 Marylan d Westminster v Shipley (Md, 1888), 13 Al L Rep 365 Mississipp I Williams -v Ramsey, 52 Mis S 851; Vicksburg, etc, RCo v Ragsdale, 51 Mis S 448; Rankin County Sav Bank v Johnson, 56 Mis S 127 Missour I State v Ryan, 120 Mo 88; Pomeroy v Selmes, 8 Mo 727 United State S New York, etc, RCo v Hyde, 56 Fed Rep 191;. Michigan In S Bank v Eldred, 143 U S 293; Hume v Bowie, 148 U S 245; Davis -v Patrick, 122 U S 138; Marine City Stave Co v Herreshoff Mfg Co, 32 Fed Rep 822; Missouri, etc, RCo v Russell, 60 Fed Rep 501; U S v Jones, 149 U S 262; U S -v Carr, 61 Fed Rep 802; Ward v Cochran, 150 U S 601 Nunc pro Tun e Even in that case it must appear on its face to have been taken and signed at the tria L Wabash , etc, RCo v People, 106 111 652 Presumption of Leav e Where the judge in signing the bill of exceptions certifies that the bill is made up and tendered for signature after the term by his special leave and authority, it is presumed that special leave was granted during the term by an order of the court. Robinson v Hartridge, 13 Fla 501 Keeping Case Ope N Where it is es- sential to give time until the next term to prepare a bill of exceptions, the case should be kept open, and final judg- ment should not be entered until the N Winston v Giles, 27 Gratt ( Va) 530 2 Colorad O Packard v Spellings, 3 Colo109 Pennsylvania Haines v Co M, 99 Pa St 410 United State S U S v Jones, 149 U S 262; Jones v Grover, etc, Sew- ing Mac H Co, 131 U S Appendix c L WaiveRThe rules are intended, it was said in Haines v Co M, 99 Pa St 410, for the protection of the judge, and could not be waived by the district attorne Y b BY CONSENT And where the bill is so signed upon mutual consent of parties, the general rule of law is deemed waived and the bill regarded as vali d 1 C WHEN THE ORDER MUST BE MAD e An order extending the time for signing a bill of exceptions is a judicial a Ct 2 It must be made in term, therefore ; 3 an order made in vacation United State S The rules of a state court respecting bills of exceptions do not obtain in the U S courts unless expressly adopted by rul e Whalen v Sheridan, 5 Fed Rep 436 1 Alabama Stephens v State, 47 Ala 700 Colorad O Rhoades v Drummond, 3 Colo374 Illinoi S Burst v Wayne, 13 111 664; Evans v Fisher, 10 111 453 Marylan d Wheeler v Briscoe, 44 Md 312 Michiga N Atlas Mi N Co v John- ston, 22 Mich 78 Mississipp I Vicksburg, etc, RCo v Ragsdale, 51 Mis S 462; Rankin County Sav Bank v Johnson, 56 Mis S 127; Williams v Ramsey, 52 Mis S Missour I Hossinger v Pye, 10 Mo 156; Diepenbrock v Shaw, 21 Mo 122; Farrar v Finney, 21 Mo 569; Consaul v Liddell, 7 Mo 250; Pomeroy v Selmes, 8 Mo 727; Scott v Burd, 9 Mo 149; Wilcoxson i.

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It is im- material Post Date: Tue, 29 Jul 2008 10:59:18 +0000
McBride, 23 Mo 404; Ellis v Andrews, 25 Mo United State S U S v Jones, 149 U S 262; Jones v Grover, etc, Sew- ing Mat- H Co, 131 U S Appendix c L ; Ex p Bradstreet, 4 Pet (U S) 102; Waldron v Waldron (U S, 1895), 15 Su P Ct Rep 383 ; Hunnicutt v Peyton, 102 U S 333; Davis v Patrick, 122 U S 138; Michigan In S Bank v El- dred, 143 U S 293 Kansa S Under the practice of Kan- sas it is held that the time for authen- tication cannot be extended by a court or judge even when the consent of counsel has been give N Martin v Southern Ka N RCo, 51 Ka N 162; Gallaher v Southwood, i Ka N 143; State v Bohan, 19 Ka N 28 In Michigan it is held that where counsel stipulate to extend the time the rules of court need not be followed, and the court has no right to disregard it. People v Circuit Judge, 39 Mich 123 Ohio Where a statute provided that exceptions must be reduced to writing during the term when the deci- sion was rendered, and another section provided that a majority of the judges composing the court, with the consent of the party excepting, should sign the exceptions within thirty days after the term, the effect of this statute was said to extend the time for the per- formance of this duty thirty days after the term with the consent of the ex- ceptor, although the bill of exceptions was neither reduced to writing nor presented to the trial judge until after the close of the trial ter M State z/ Pugh, 7 Ohio CiRCt Rep 164; State v Hawes, 43 Ohio St 16 In a Criminal Case it was held com- petent for the parties to consent that the settlement might be had at a term subsequent to that at which the indict- ment was tried and before the judges who might then compose the court, although they were different persons from those who sat upon the tria L W 7 ood v People, 59 N Y 117 Alabama Only the official prosecut- ing on behalf of the state can consent to such extension in a criminal case; associate counsel have no authority to so CONSENT Ex / Mayfield, 63 Ala 203 How Consent Show N Where the bill of exceptions is settled in vacation by consent, the agreement of parties should be preserved by the filing of a written stipulation to that effect or by a record entr Y Evans v Fisher, 10 111 453; Claggett v Gray, i Iowa 20; Rankin County Sav Bank v John- son, 56 Mis S 127; Vicksburg, etc, RCo v Ragsdale, 51 Mis S 448; Kim- ball v Mitchell, 57 Mis S 632 2 Marseilles v Howland, 34 111 App 350; Marseilles v Howland, 136 111 84 3 Illinoi S Marseilles v Howland, 34 111 App 350; Hawes v People, 129 111 130; Douglass v Suggs, 36 111 App Indiana, Kinsey v Satterthwaite, 88 Ind 344; Robinson v Johnson, 61 Ind 535; Firestone v Firestone, 78 Ind 536; Bargis v Farrar, 45 Ind 41; d REQUISITES OF APPLICATIO N Special rules of practice determine whether the motion for an extension of time should be made upon notice to the adverse part Y 2 The applicant must show due diligence in his affidavits tendered in support of the motio N 3 e BASED ON CONSENT In some jurisdictions it is held that an order, made without special statutory provision, granting leave to present the bill for signature after the expiration of the term must be based on consent of the partie S 4 The consent must be entered of recor d 5 Consent alone without the order has been held insufficient ; 6 nor is the order sufficient unless based upon mutual CONSENT 7 Columbus, etc, RCo v Powell, 40 Ind 37; Singer Mfg Co v Struck- man, 72 Ind 601; Greenup v Crooks, 50 Ind 410; Rinehart v Bowen, 44 Ind 353; Fulkerson v Armstrong, 39 Ind 472 KentucKy Wade v Bryant (Ky, 1888), 7 S W Rep 597 Marylan d Thomas v Ford, 63 Md 348; Wheeler v Briscoe, 44 Md 312; Westminster v Shipley, 68 Md 610 Michiga N Cleveland v Stein, 14 Mich 334 Nevad A Burns v Rodefer, 15 Nev Texa S George v State, 25 Tex 229 United State S Ex p Bradstreet, 4 Pet (U S) 102 After Notice of Settlement. It is im- material that an order extending time to settle a bill was made after the ex- piration of the time within which due notice of the application to settle could have been given to the adverse party under the original statutory perio d Williard v Dillard, 86Cal The Order must be Specifi C A mere general order of the court continuing "all matters in court not disposed of until the next term" does not extend the time for settlement.

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Jones v Pennsylvania RCo, 18 Post Date: Tue, 29 Jul 2008 10:39:37 +0000
Burns v Rodefer, 15 Nev 59 1 Illinoi S Marseilles v Rowland, 34 111 App 350; Hawes v People, 129 111 130; Douglass v Suggs, 36 111 App 553- Nevad A Burns v Rodefer, 15 Nev 59- United State S Muller v Ehlers, 91 U S 249; Herbert v Butler, 14 Blatchf (U S) 3 57 Second Extensio N So it is held that a second order again extending the time cannot be made in vacatio N Sweetser v McCrea, 97 Ind 404; Davidson v Stat e 62 Ind 276; Robinson v Johnson, 61 Ind 535; Brousez'. Price, 20 Ind 216; Harrison -v Price, 22 Ind 165; Vanness v Bradley, 29 Ind 388; McElfatrick v Coffroth, 29 Ind 37; Earl v Dresser, 30 Ind II ; Whitworth v Sour, 57 Ind 107; Vandoren v Kimes, 29 Ind 582; Thompson v Eagleton, 33 Ind 300; Roloson v Herr, 14 Ind 539; Simon- ton v Huntington, etc, Plank Road Co, 12 Ind 380; Lotz v Briggs, 50 Ind 346; Missouri, etc, RCo v Russell, 60 Fed Rep 501 2 In Colorado such notice is re- quire d Taylor v Derry, 4 Colo App 109 In Nebraska it is held that no notice of the application to 4 the judge for an extension of time for the prepara- tion and service of the bill is neces- sary, as it is not jurisdictiona L Denver First Nat Bank v Lowrey, 36 Neb 290; McDonald v McAllister, 32 Neb The same rule is held in District of Columbi A Entry of the order on the minutes of the court is sufficient. Jones v Pennsylvania RCo, 18 d C 426 3 Stein v Vannice ( Neb, 1895), 62 N W Rep 464 4 McCarty v Cunningham, 75 Mo 279; West v Fowler, 59 Mo 40; Peake v Bell, 65 Mo 224; Robart v Long, 65 Mo 223 5 State v Duckworth, 68 Mo 156 6 McCarty v Cunningham, 75 Mo 279; Spencer v St Louis, etc, RCo, 79 Mo 500 7 Ellis v Andrews, 25 Mo 327 ; West v Fowler, 55 Mo 300 But it is further held that, where / EFFECT OF THE ORDERThe effect of the order is to ex- tend the jurisdiction of the court to sign and settle the bill until the expiration of the time limited therein ; l where signed thereafter the bill is voi d 2 g FURTHER ORDERWhere the time may be again extended by a second order, the order must be made before the time lim- ited in the first order has expire d 3 In Indiana and Florida a the statute expressly allows an exten- sion of time for preparing or filing the bill, the consent of the opposite party is not require d But the order is a prerequisite under such a statut e State v Ryan, 120 Mo 88; State v Mayor, 99 Mo 602; Webster County v Cunningham, 101 Mo 642 Mississipp I In Mississippi the court is deemed authorized to extend the express time defined by statute, but not without consent of partie S Allen v Levy, 59 Mis S 613 How Show N But where no objec- tion is made on appeal, the order ex- tending time will be presumed to have been made by agreement.

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