Sweatman v. Wall

Simmons, C. J. 1. Where a case came on for trial and the judge announced orally from the bench that a motion to dismiss it was sustained, but no order of dismissal, though one had been prepared by defendant’s counsel, was signed or entered on the minutes, and at the next term an order was passed reciting these facts and directing that the original order of dismissal be signed and entered nunc pro tunc, which was done : Held, that whether the plaintiffs were or were not bound to except to the action taken at the preceding term within due time thereafter, they can not maintain a bill of exceptions sued out after the adjournment of the last term, when it is impossible to ascertain therefrom whether exception is taken to what was done at the former term or to the order directing the signing and entering of the original order of dismissal. This is so because such a bill of exceptions does not comply with the law requiring alleged errors to be plainly and distinctly pointed out. 2. Where a bill of exceptions recites that an order was passed on a specified day and the record shows that it was passed on a different day, the record will control. Applying this well-established rule to the present bill of exceptions, it does not affirmatively appear that it was tendered within the time required by law. Writ of error dismissed. All the Justices concurring.