McFarland v. Burton

JUDGE PBYOB delivered the opinion of the court. In this case there was a trial by jury, and the preliminary question raised by the appellee is, that what purports to be a bill of exceptions can not be considered. Section 834 of Carroll’s Code provides: “And 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.” By an amendment of May 12, 1886, that section is amended so as to read as follows: “If the judge of said court, for any cause, does not preside at the said term of the court, or no court — 297 — is held, then the party offering the bill of exceptions-shall have until the next term of the court to perfect and prepare the bill of exceptions.” The special judge presiding gave until the sixth day of the succeding term to file the bill of exceptions, and on the day named the bill was tendered and offered to be filed, but the judge then presiding was not the judge-who tried the case; nor was the special judge present who presided when the trial was had. The appellant was, therefore, without remedy, unless the amendment of May 12, 1886, entitled him to file his bill at the next-term. Prior to this amendment, as was said in Hayden v. Ortkeiss, 83 Ky., 396, the appellant might resort to a signing of the bill by by-standers; but the difficulty in obtaining the signatures of those who heard the trial, no doubt, suggested itself to the Legislature, and the amendment to this provision of the Code was-passed in the session of 1886, enabling parties to' reach this court by an appeal based upon exceptions where the trial judge fails to attend at the term when the¡ bill is to be filed, or for some reason can not preside. In that event the party offering the bill shall have until - the next term to file it. So when the appellant tendere^ his bill on the day fixed by the special judge-who had tried the case, he found a judge on the bench unacquainted with the conduct of the trial, and- having-done all that was required of him, the offer to file was continued until the next term, when the special judge trying the case being present, signed the bill that was-then filed, and is now a part of the record. It is now-insisted that the amendment of May 12, 1886, does not apply to a special judge, but to the regular judge, and — 298 — that when the appellant tendered his bill of exceptions at the term following the trial of his case he should have had bystanders to sign the bill, and then tender it to the court. The difficulty in having a bill of evidence attested at such a late day by by-standers will be readily perceived, and if the amendment is so construed as to make it apply to the regular judge only, this evil in the practice sought to be remedied must still continue. A special judge, selected in the manner provided by the statute to try a case, is the judge of the court in the meaning of the amendment, and invested with all the powers of the regularly elected judge in the particular case, and this power and authority continues until the trial is ended. When, then, is the case in contemplation of law finally disposed of, in so far as it affects the right of the special judge to hear and determine it % If a trial is had, it is the duty of the special judge presiding to hear and make a final disposition of the case in the court below. Where there is a mistrial, or the case continued, in either event, the judge, when abdicating the bench, loses all power over it, and when called at a subsequent term it must be heard by the regular judge, if he can properly preside, and if not, a special judge must again ,be ■chosen. If a special judge has the power (and this will not be questioned) to fix a day at the succeeding term of the court to prepare and file the bill of evidence, his authority or right to preside extends over the case until prepared for an appeal to this court, and if otherwise, the unsuccessful party is left without a judge to sign the bill, or to determine the truth of — 299 — what it contains. There is no refusal on the part of the special judge to sign the bill, but his absence prevents the party from doing more than to offer to file it on the day the special judge has said it should be filed. Although the amended act was passed after the trial, it was in force before the day for filing, and being purely remedial in its character, applies as well to a case tried before as after its passage, the remedy ■ existing when the offer to file was made. In our opinion, therefore, the bill of evidence was properly signed by the special judge, and must be considered by this court. The appellee is seeking to make the clerk liable for his failure to issue an execution when directed by his attorney, and the defense is, that the record was lost, so that the cost could not be taxed and the execution issued. There was more than one trial in this case, .and while the answers to interrogatories propounded to the jury on the first trial might have warranted a judgment for the defendant, still no appeal was asked for or granted from that trial which might have been ■considered on the final hearing. The case must now be determined alone by what transpired during the progress of the trial resulting in the judgment complained of. A clerk is not an insurer of the records in his office, •and would be released from liability by the wanton' ■destruction of the office and its contents when not within Ms power to prevent it, or from discharging .a duty by reason of the act of others over whom he had no control, and whose action he could not prevent; still, having the custody of records in which — 300 — the entire public has an interest, and oí such great value as can not well be estimated, he must exercise a high degree oí diligence in their preservation and safe-keeping — such diligence as a prudent man would exercise when intrusted with the custody of such valuable papers. It is no defense to an action charging a clerk >ith a breach of official duty as to the custody of a record to say that it was taken from his office without his knowledge or consent, unless coupled with the averment of diligence on his part, and that, within a. reasonable time, he had made diligent search for it, and was unable to find it. The statement that it was the custom to permit attorneys to take records from the office, and impossible to prevent it, constitutes no defense whatever. It is the duty of the clerk to prevent this, and such a custom as permits records to betaken from the office by parties in interest, or others, instead of relieving the clerk from liability, fixes his responsibility for the damages sustained. It is the duty of the clerk to issue executions when ordered by the attorneys, and in this case an entry was made by the attorneys to issue the execution at once, and failing to do so, and the appellee losing his debt thereby, the clerk is responsible, unless he has some valid defense. It is not pretended that the reasonable discharge of other duties prevented the execution from being issued in proper time, but the defense is, that the record was lost, and the attorney so notified as soon as, or in a day or two after, the order to issue the execution was made. Now, if abstracted^ by some one or lost without the301 fault of the clerk, and such facts should be alleged, the excuse might be deemed sufficient, but facts must be stated showing a proper degree of diligence in the preservation of such papers. It is made the duty of the clerk, by statute, to tax the costs, and include them in the execution, that the entire debt and cost •may be made, and if he fails to do so, to the extent of this failure he is responsible for the damages sustained. This taxation could, not well be made without the papers in the case. A mere statement that the papers are lost, and, therefore, the costs could not be included or the execution issued, is not a sufficient response. The court must know the diligence the clerk exercised in preserving the record, and that the fault or loss could not have been the result of his own negligence. There is testimony in the case conducing to show that the attorneys for the. plaintiff in the judgment upon which the execution issued had the custody or possession of the record that was said to be lost at the time the execution was directed to be issued, and during the progress of the trial the appellant offered to file an amended answer alleging that fact, and relying upon it as a defense to the action. The court refused to permit the amendment to be filed, and in doing so the court erred. If the plaintiff or his attorneys had taken the records from the office, and thus prevented the clerk from taxing the costs, .so as to issue the execution, the fault is theirs, and not the neglect of the clerk; or, if negligence on the part of the clerk in permitting the record to be taken from his office- by the plaintiff or his attor — 302 — ney, it was equally the negligence of the plaintiff or his attorney in not returning it, and such neglect as caused the loss, and for which the clerk should not be held responsible. An instruction should have been given to that effect, and the -amended answer permitted to be filed, and instruction C, that was in effect an instruction to find for the plaintiff, should have been refused. The judgment below is reversed, and cause remanded with directions to award a new trial, and for proceedings consistent with this opinion.