Hill's Adm'r v. Penn Mut. Life Ins. Co.

• Decision Date: 21 March 1905
• Citation: 85 S.W. 759,120 Ky. 190
• Parties: HILL'S ADM'R v. PENN MUT. LIFE INS. CO.
• Court: Kentucky Court of Appeals

85 S.W. 759

120 Ky. 190

HILL'S ADM'R v. PENN MUT. LIFE INS. CO.

Court of Appeals of Kentucky.

March 21, 1905

Appeal from Circuit Court, Warren County.

"To be officially reported."

Action by Elisha Hill's administrator against the Penn Mutual Life Insurance Company. From a judgment for defendant plaintiff appeals. On a motion to strike the bill of exceptions. Overruled.

Samuel D. Hines, Sims & Grider, and George H. Galloway, for appellant.

Wm Marshall Bullitt, for appellee.

HOBSON C.J.

On June 13, 1904, the 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 section 334 of the Civil Code of Practice 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. Section 964, Ky. St. 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 followed 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 exception. In ignoring the September term, 1904 (which was a term devoted alone to the trial of criminal and penal prosecutions), I followed the uniform...