Southern Lumber Co. v. Lowe

Per Curiam. This is a motion to strike out the hill of exceptions and affirm the ease on the ground that the bill of exceptions was not filed within the time provided by law and the order of the trial court. On October 1, 1914, the trial court overruled the motion for .a new trial and gave appellant one hundred and twenty days thereafter within which to file the bill of exceptions, and the same wias signed by the judge and filed with the clerk on January 29, 1915, which was the last day of the allotted period. The statute provides, however, that the time allowed by the court for filing exceptions must not be “beyond the succeeding term.” Kirby’s Digest, section 6222. The next regular term of the Bradley circuit court, after trial term, began on January 4,1915, and the court was continuously in session until January 16, when there was an .adjournment over to March 29, 1915. It is insisted by counsel for appellee that the words of the statute, “not beyond the succeeding term,” mean before the commencement of the succeeding term, but we think the decisions of this court have settled that point to the Contrary. Stinson v. Shafer, 58 Ark. 110, and cases referred to therein. The further question arises whether the words refer to a continuous session of the court or to the whole term up to the final adjournment. Our statute was copied ■from one in force in the State of Kentucky, .and the 'courts of that State decided, while the- statute was in force, that a bill of' exceptions could not be signed by the trial judge in vacation, but if the time was extended beyond the trial term it must be to a day in the next term and the bill of exceptions must be settled during that term. The practice has, however, been uniform in this State, and has been recognized by this court, to permit a bill of exceptions to be signed in vacation if done within the time specified in an order of the court entered at the trial term. It has been decided here that the filing of a bill of exceptions is not a judicial act, but constitutes merely the making of a record of past transactions and ■therefore may be done in vacation, and that is the basis of our construction of the statute on this subject. Bullock v. Neal, 42 Ark. 278. Since we hold that the bill of exceptions may be signed by the judge ¡and filed with the clerk in vacation, there is little reason for construing the statute to mean that it must be done during the -succeeding term while the court is in session. It may be that ■the lawmakers, in using the language, had in mind a continuous session of the succeeding term, but the • language is broad enough to mean, .and we think does mean when fairly interpreted, that the limit is fixed at the final adjournment if that does not go ¡beyond tbe period of time fixed in the order of tbe ¡court. Tbe only limitation upon tbe power of tbe court at tbe trial term to extend tbe time for filing a bill of exceptions is that it must not run beyond the next succeeding term, 'and the fact that the next term is unduly extended by adjournments over from time to time does not prevent tbe extension of tbe time up to the limit of tbe number of days fixed in 'the 'Court’s original order. The leoucdnsion of the court therefore is that notwithstanding tbe bill of exceptions was not filed during a continuous session of tbe term of tbe court next succeeding tbe trial term, it was within time when filed within one hundred and twenty days and not beyond the final adjournment of tbe court. The motion will therefore be overruled.