Hill's Adm'r v. Penn. Mutual Life Ins.

Opinion by Chief Justice Hobson Overruling motion. [191] On June 13/1904, tlie plaintiff’s motion for a new-trial was overruled in the Warren Circuit Court. An appeal was granted to this court, and plaintiff was given until the tenth day of the November term of the court to make up and present a -bill- of exceptions. On the ninth day of the November term the plaintiff tendered his bill of exceptions, which was signed and filed over the objections of the defendant. The defendant has entered a motion in this court to strike the bill of exceptions from the record on the ground that by 'sec. 334 of the Civil Code of Prac. time may be given to prepare a bill of exceptions, but not beyond ■a day in the succeeding term; that there was a term of the Warren Circuit Court held in September, and that the court was without authority to extend the time to the tenth day of the November term, or to file a bill of exceptions at that term. No objection was made by the defendant to the order giving until the tenth day of the November term to file the bill of exceptions, and it appears that W. B. Gaines, who was one of -the attorneys for the appellee; and whose name is signed to the answer, was present in court when the order was made, and made no objection to it. There are six terms a year of the Warren Circuit Court. Sec. 964, Ky. Stats., 1903, provides: ‘ ‘ Grand juries shall be summoned and criminal and penal cases shall be heard at but three terms, in each year, in any county, to be fixed by order of -court, unless in an emergency the court may otherwise direct.” After this statute was passed, the Warren Circuit Court made an order on April 6, 1896, that criminal and penal prosecutions, only, should be tried at the January, April and September terms, and civil cases, only, at the other three terms. Since the making of this order, under the administration of the judge who made the order and two other judges who have-fol [192] lowed him, only civil cases have been considered at the three civil terms, and only criminal cases at the other three terms. When time was given to make up a bill of exceptions, it was always given to the next civil or criminal term, according to the nature of the case. This rule of the court was acquiesced in by the members of the bar. The statement of the judge who made the order in this case is as follows: “By agreement of parties I presided as special judge in the trial of this case. At its May term, 1904, I overruled plaintiff’s motion for a new trial, and gave him until the tenth day of its November term, 1904, in which to file bill of exceptions. In ignoring the September term, 1904 (which was a term devoted alone to the trial of criminal and penal prosecutions), I followed the uniform rule observed by the judges of the Warren Circuit Court since 1896. Since the establishment of six terms of the Warren Circuit Court, all civil processes have been returned to its civil term, and all criminal processes have been returned to the criminal terms; and, where bills of exception, were authorized to be filed at a succeeding term,such term has uniformly been held by the Warren Circuit Court tó mean and apply to its next civil term. This settled ruling of the court I observed in this case.” The present circuit judge also makes the following statement: “As judge of the Eighth Judicial District I have followed the ruling of Judges Settle and Bradburn, that no order or step can be taken in civil or criminal cases except at the terms indicated in the order of 1896 for the trial of cases of the kind. This ruling has been and is made upon the understanding that every member of the Warren county bar agrees to same, and no question has ever before been raised concerning the same.” The former circuit judge says, in effect, the same. It is also shown that there was no reason for extending [193] the time to the November term, except the understanding that no motion or step of any kind could be taken in a civil case at the criminal term to be held in September, and that Mr. G-aines, who was present when the order was made, was familiar with this understanding of the bar, and had acquiesced in it since 1896. Although the Code provides that the time for filing a bill of exceptions shall not be extended beyond a day in the succeeding term, the parties may, by con sent, extend the time; for where a person has con sented to an extension of the time, and thus induced his adversary to delay to file ids bill of exceptions, he will not be allowed to take advantage of the delay which he himself thus caused. The defendant’s attorney, who was present when the order was made giving time until the tenth day of the November term, to file a bill of exceptions, was familiar with the understanding of the local bar; and when he stood by without objection, and allowed the time to be given, knowing that the plaintiff was acting upon the assumption that the bar had agreed to this manner of transacting the business of the court, he must be held to have agreed to the order, for he understood that the other party was acting upon that assumption. A person can not be allowed to remain silent when he knows that the other party is proceeding upon the assumption that he is consenting to what is being done, and afterwards withdraw his consent when the party who has thus been misled will be left without remedy. While it is true that sec. 964, Ky. Stats. 1903, merely limiting criminal and penal cases to three terms, civil cases may be heard at any term, and no order or rule of court in conflict with the statute can be enforced over the objection of a party, still there is no reason why the court may not proceed with- its business at such terms as it deems best, where there is no objec [194] tion, and the parties consent to this maimer of setting the cases for hearing. The motion in this court is not made by Mr. Gaines, but by another attorney, who was not present, or cognizant of the local custom. Still in taking steps in an action the attorney is the representative of his client, and the latter is bound by his acts, and can not, as to such matters as this, complain of what his counsel has consented to, either expressly or by conduct from which consent would be necessarily inferred. The motion to strike out the hill of exceptions is-therefore overruled. Judge Settle not sitting.