Great Western Manufacturing Co. v. Hunter

Lake, Ch. J. In this case a motion has been made to quash the bill of exceptions respecting the evidence and proceedings upon the trial. The ground of the motion is, that the bill was settled and allowed by the clerk of the court and not by the presiding judge. Still another reason was urged in argument by counsel, viz., that the allowance of the bill, even if the clerk were authorized to make it, was too late. This point, however, is not included in the motion, and cannot now be considered. It appears that the parties by their attorneys agreed upon the bill of exceptions, as to what it should contain, so that, under the statute, sec. 311 of the code of civil procedure, the clerk had authority to act, even if the judge were at the time within the district and able to do so. Comp. Stat., 571. From the fact that affidavits have been filed respecting the ability of the judge to have acted in this matter — on the part of the plaintiff to show his absence from the dis [453] trict, and consequent inability to do so, and on the part of the defendant denying it — we are led to infer that counsel have in a measure misapprehended the force of this provision as to the authority of the clerk. 'The seventh clause of the section provides that: “In case of the death of the judge, or when it is shown by affidavit that the judge is prevented by sickness or absence from his district, as well as in cases where the parties interested shall agree upon the bill of exceptions (and shall have attached a written stipulation to that effect to the bill), it shall be the duty of the clerk to settle and sign the bill, in the same manner as the judge is by this act required to do.” Prom this it will be seen that “where the parties interested shall agree upon a bill of exceptions,” and attach thereto a written stipulation to that effect, the clerk is authorized to act, and may be required to do so, independently of whether the judge is either disqualified or unable to do so. Such being the law governing this matter, the motion must be overruled. Motion overruled.