Missouri, K. & T. Ry. Co. v. Russell

THAYER, District Judge. In this case the first question called to our attention by the arguments of counsel is whether the bill of exceptions was filed in time to become a part of the record.-' If this question is answered in the negative, in accordance. with the contention of the defendant in error, then we cannot notice’ any of the rulings of the trial court which have been assigned for. error. The record shows that a judgment was rendered against, the plaintiff in error on the 21st day of April, 1893, at a regular term of the United States court in the Indian Territory held at. South McAlester, in the second judicial division of said territory.-, Thereafter, on April 26, 1893, before the expiration of the term, an order was duly made and entered of record extending the time for filing a bill of exceptions for 30 days from that date. Before, the expiration of the last-mentioned period, the term of court, lapsed. Afterwards, on May 24-, 1893, and again on June 22, 1893, orders were made under the hand and seal of the trial judge, ex-, tending the time for filing a bill of exceptions for a period of , 30 days on each, occasion. Also, on July 8, 1893, a further extension', of time was granted until September 1, 1893. The three orders, last mentioned appear to have been ex parte orders, which were, obtained, from the judge in vacation, without notice to the defendant in error, and without his consent. The bill of exceptions was finally allowed, signed, and filed on the 10th of August, 1893. The question whether a bill of exceptions can be allowed after the lapse of the term at which the judgment is rendered has been frequently considered by the federal courts, and the rule of practice in that, regard is now well defined. In Muller v. Ehlers, 91 U. S. 249, it was decided that, save under very extraordinary circumstances, a bill of exceptions signed after the term at which the judgment is rendered, without-the consent of parties, or an express order of the court to that effect, made during the term, cannot be considered as a part of the "record in the case. The general rule, as last stated, was reaffirmed in Jones v. Sewing Mach. Co., 131 U. S. Append. 150. It. has since been held, in substance, in Chateaugay, etc., Iron Co., petitioner, 128 U. S. 544, 9 Sup. Ct. 150, that a biff of [503] exceptions may Re allowed and signed after the lapse of tlie term, if it is settled, signed, and died in substantial conformity with a standing rule of the particular court regulating the time and manner in which bills of exceptions shall be presented and filed. It was further decided in Davis v. Patrick, 122 U. S. 138, 7 Sup. Ct. 1102, that if-a bill of exceptions is seasonably submitted to the trial judge, and through his neglect or oversight the bill is not signed and filed until after the expiration of the term, it will not he stricken out. This court has also held that a bill of exceptions may be allowed at the term when a motion for a new trial is finally acted on, though it be a term subsequent to the one at which tlie judgment was entered, provided the motion for a new trial was duly filed by leave at the trial term, and the hearing thereof was continued or postponed to the succeeding term. Woods v. Lindvall, 4 U. S. App. 45, 1 C. C. A. 34, 48 Fed. 73; The latest declaration on the subject in hand is to be found in Bank v. Eldred, 143 U. S. 293, 298, 12 Sup. Ct. 450, where Mr. Justice Gray summarizes'the law in the following language: “By the uniform course of decision no exceptions to ruling’s at a trial can bo considered * * * unless they were taken at the trial, rind were also embodied in a formal bill of exceptions presented to 1he judge at the same term, or within a further time allowed by order entered at that term, or by standing rule of court, or by consent of the parties; and, save under very extraordinary circumstances, they must he allowed by the judge and tiled with the clerk during tlie same term. After the term, has expired, without the court’s control over the case being reserved by standing rule or special order, * * $ all authority of the court below to allow a bill of exceptions then first presented, or to alter or amend a bill of exceptions already allowed and filed, is at an end.” See, also, U. S. v. Jones, 149 U. S. 262, 13 Sup. Ct. 840; Hume v. Bowie, 148 U. S. 245, 253, 13 Sup. Ct. 582; Railway Co. v. Hyde, 5 C. C. A. 461, 56 Fed. 188. In view of the foregoing decisions, we think it manifest that the bill of exceptions in the present case did not become a part of the record, and that it must be ignored. We are of the opinion that the trial judge, in the absence of any standing rule of court on the subject, had no power in vacation to enlarge the time for filing a hill of exceptions which had been fixed by an order of court made and entered of record in term time; and, as no con sent was given by the defendant in error that the time might he thus enlarged, the orders made in vacation cannot operate against him as an estoppel. The result is that, for want of any hill of exceptions covering the rulings complained of in the assignment of errors, the judgment of the court below must he, and the same is hereby, affirmed.