Knights of Pythias of North America v. Bond

McCulloch, C. J. This is an action instituted be-' low by appellee against appellant, a fraternal insurance society, to recover the amount of a benefit certificate issued on the life of one of its- members, now deceased. The errors complained of are that the evidence is not legally sufficient to sustain the judgment, and that incorrect instructions were given at the instance of appellee, and that correct instructions requested by appellant were refused. These errors must have been brought upon the record by bill of exceptions before they could be considered here. There is in the record what purports to be a bill of exceptions duly signed by the trial judge and filed within the time allowed by the court; but there is an affirmative statement at the conclusion, reading, “This record does not contain all the evidence.” In other words, the trial judge certified that the bill of exceptions did not contain all the evidence. This being true, we must indulge the conclusive presumption that -every fact necessary to sustain the verdict of the jury was established by the evidence. While the bill of exceptions appears to have been signed by 'the trial judge and filed within the time prescribed by the order of court, there also appears in the record an order of the court, made on the day that the bill of exceptions was filed, showing that it had not been signed by the trial judge, but was filed for his consideration. ■ Later, and after the expiration of the time for filing the bill of exceptions, there appears an order of the court striking the bill of exceptions from the files and granting appellant leave to prepare and file another bill of exceptions within two weeks from that time. It is, therefore, clearly established by the whole record that the bill of exceptions was not, in fact, signed by the trial judge until long after the time specified in the order of the court. At the time the order was made giving a further extension, it was beyond the power of the court to do so, for the term had closed, and the court lost its poAver in the premises further than to allow, amendments to the bill of exceptions. It is within the power of the court to permit a hill of exceptions filed within time to he amended so as to make it speak the truth, hut the court has no power, after the lapse of the time, to allow a new hill of exceptions to be filed. There is, therefore, nothing before us for consideration, and the judgment must be affirmed. It is so ordered.