St. L., I. M. & S. Ry. v. Holman

Cockrill, C. J. After the appellant’s motion for a new trial was overruled, an order was made, giving until the first day of the succeeding term, to prepare and file a bill of exceptions. No bill of exceptions was presented or order made in the matter on that day, but on the ninth day thereafter the appellant presented a bill of exceptions to the court, which was allowed and signed, and, as the record recites, “for good cause shown, it appearing that the same was not filed within the time allowed,” it was then ordered to be filed. The case has been placed on the easy docket, on consideration of the appellee’s motion to advance and affirm as a delay case. Formerly it was necessary to present bills of exception for allowance at the term at which the trial was had. The statute provides now for extending the time to a day not beyond the succeeding term. Mansf. Dig., 5157. If it is extended generally, without fixing a particular day, the time expires still with the close of the term and is not extended to the end of the statutory period. Carroll v. Sanders, 38 Ark., 216. In the case of this Appellant v. Rapp, 39 Ark., 558, the circuit judge allowed a bill of exceptions on the fourth day of the succeeding term, when the time had been extended to the third day only, and the court disregarded it on appeal. The cases are numerous in this state and elsewhere to the effect that a bill of exceptions, filed after the time granted for that purpose, does not become a part of the record and will not be considered on appeal. Adler v. Conway Co., 42 Ark., 488, and cases cited. The appellant tries to distinguish this upon the ground that the circuit judge undertook to exercise a sound discretion upon cause shown for not presenting and filing his bill of exceptions within the time allotted by the court. If the circuit judge has any discretion in the matter it was exercised in the Rapp case, supra, in the act of allowing the bill of exceptions, as much as was done in this case. It appears from the statement that it was the court that acted in that case as in this; but allowing a bill of exceptions is not a judicial act. Bullock v. Neal, 42 Ark., 278. When the time is extended beyond the trial term and the day fixed allowed to pass without action, the court loses control over the matter, just as it formerly lost control by the lapse of the term, and the opportunity for allowing and filing a bill of exceptions is lost. This is the construction given the statute in Kentucky, whence ours came. Freeman v. Brenham, 17 B. Mon., 603; Vandevers v. Griffith, 2 Met., 425; Meadows v. Campbell, 1 Bush., 104; Bailey v. Villier, 6 Ib., 27; Smith v. Blakeman, 8 Ib., 476. This construction does not interfere with the power of the court to order a bill of exceptions filed nunc pro tunc where the facts exist to warrant such an order. Kirby v. Bowland, 69 Ind., 290. That results from the power of the court to make its records speak the truth. It was said by Mr. Justice Eakin, in delivering the opinion of the court in Carroll v. Pryor, 38 Ark., 283, “Courts of Chancery are competent to relieve against any hardships arising from accident, fraud or mistake, if from any such cause the bill could not be presented in the time allowed.” No question was attempted to be presented in the circuit court which does not depend on the bill of exceptions, and as there is no bill of exceptions which we can notice, the judgment is affirmed.