Wadsworth Red Ash Coal Co. v. Scott

ON MOTION TO ESTABLISH BILL OF EXCEPTIONS. GARDNER, J. (1) The evidence submitted on the motion to establish a bill of exceptions discloses that counsel for appellant presented to the presiding judge a bill of exceptions in this cause within 90 days from the date of the judgment, and that the judge signed the same as presented on that date, to wit, May 16, 1914. Subsequently counsel for appellant had the bill in his office for reference in consulting with counsel for appellee concerning any changes the latter might wish to suggest. While in said office the bill of exceptions was lost. That the bill here sought to be established is a substantial copy of the original bill presented to and indorsed by the presiding judge, and that it is substantially correct, we think is well established by the proof. The presiding judge went abroad before the time had expired for signing the bill, leaving for Europe on July 5,1914, and returning he landed in Montreal on August 19, and arrived in Birmingham on August 22, 1914. The time for the signing of the bill of exceptions expired August 14th, several days prior to the return of the judge. Counsel for appellant made repeated efforts to get the bill signed before the expiration of the time; and the evidence is without dispute that, so far as it depended on the efforts of said counsel, the bill would have been signed within the proper time hád'Áhe judge.not been out of the country. The motion to estab 363 lish this bill is rested upon the provisions of section 3022 of the Code of 1907, providing in part as follows“If the judge dies, resigns, or is impeached, or his term of office expires, or if for other good cause he does not sign the bill of exceptions * * * within the proper time, £he bill of exceptions may be established in the Supreme Court.” It is insisted that the phrase quoted above, “or if for other good cause,” suffices to include a case of this character where the presiding judge was absent from the country. We concur in this view, and therefore conclude that the application should be granted. The bill of exceptions is accordingly established.