Jones v. Bowman

• Decision Date: 16 August 1901
• Parties: JONES ET AL. v. BOWMAN
• Court: Wyoming Supreme Court

65 P. 1002

10 Wyo. 47

JONES ET AL. v. BOWMAN

Supreme Court of Wyoming

August 16, 1901

ERROR to the District Court, Johnson County, HON. JOSEPH L. STOTTS Judge.

Heard on motion to strike the bill of exceptions from the record on the ground that the same was not presented in time. The facts are stated in the opinion.

Motion to strike denied.

Clark &amp Breckons, for the motion.

The District Judge has no authority by a chambers order to extend the time granted by a previous order of the court for the presentation of a bill of exceptions. (Schlessinger v Cook, 8 Wyo., 484.) If a Judge in chambers when the court, being still in term, has jurisdiction of the cause may not make an order granting time to prepare and present the bill, upon what theory can a Judge extend the time granted by the court by a chambers order after the adjournment of the term? (Mo. K. & T. Ry. Co. v. Russell, 60 F. 501.) The presentation of the bill is one thing and the filing of it is another. The permission granted by the court was for "filing" and not for presentation. The inference is not that time was given to reduce exceptions to writing. (Hogan v. Peterson, 8 Wyo., 549, 556; Bank v. Anderson, 7 Wyo. 441.)

Parmalee & Hill and John W. Lacey, contra.

The court is open in vacation as to all matters excepting the trial of issues of fact. An order giving time to prepare bill of exceptions beyond the term retains in the court or Judge control of the entire matter of the bill during the period of time so granted, and during that time the court can enter any proper order in the matter, whether involving judicial powers or not, and during that time the Judge in vacation can exercise any judicial power in the matter to the extent judicial power is vested in him during vacation. The Judge had power to extend the time acting within the time previously granted. (Johnson v. Northern Pacific (N. Dak.), 48 N. W., 227; Ladd v. State (Ala.), 9 So., 401; West Chi. R. Co. v. Morrison, 160 Ill. 288; Yellow Poplar L. Co. v. Chapman, 74 F. 444; Hawes, Judge, v. People ex rel., 129 Ill. 123.)

Where the record proper and the bill disagree as to anything which should appear in the record outside the bill, the record will control. Hence, the time granted by the last extension, as shown by the record, was granted before the expiration of the time of the previous extension. The record must show the order giving time beyond the term for bill. A recital in the bill is not sufficient. (Smith Drug Co. v. Casper Drug Co., 5 Wyo., 510; Hogan v. Peterson, 8 id., 549; Schlessinger v. Cook, id., 484; Kirkpatrick v. Wheeler, 8 Pac., 654; Sweatman v. Hall (Ga.), 36 S. E., 954; Dismuke v. Trammel, 64 Ga. 428; Abel v. Blair (Okla.), 41 P. 342; Butler v. Savannah Co. (Ala.), 25 So. 241.) The same reason given in the case of Schlessinger v. Cook for the conclusion there would make the orders good in this case, viz.: The court retained control of the cause. (Goddard v. Ordway, 101 U.S. 751.) With jurisdiction preserved, the court has full power. (Laws 1901, Ch. 27, p. 27; R. S., Secs. 3610, 3612; Edelhoff v. Manuf. Co. (Md.), 39 A. 314; Gottlieb v. Wolf (Md.), 23 A. 198.)

The rule that is sought to be applied on account of the use of the word "file" is too technical. The construction of bills will be liberal, and the court should save the rights of parties by saving bills of exception, if possible. (Sterling v. Wagner, 4 Wyo. 5-17.)

POTTER, CHIEF JUSTICE. CORN, J., and KNIGHT, J., concur.

OPINION

POTTER, CHIEF JUSTICE.

A motion is made to strike from the record the bill of exceptions in this case on the ground that the same was not presented for allowance within the time required by law.

Final judgment in the cause was rendered, and motion for new trial overruled and excepted to on the 22d day of June, 1900, the same being one of the days of the regular May, 1900, term of the District Court. In the judgment order the following appears: "And now, upon application of the respondents, it is ordered that respondents file herein their proposed bill of exceptions by July 12th, 1900."

The following orders in the case were subsequently made by the Judge and entered upon the journal of the court:

"It is hereby ordered that the time given to the respondents, John A. Jones and Ella Jones, within which to prepare and present a bill of exceptions in the above entitled case be and the same is hereby extended until and including the 31st day of August, 1900. Done in chambers this 11th day of July, 1900. (Signed) Joseph L. Stotts."

"Time for filing bill of exceptions is hereby extended until September 30, 1900, on foregoing affidavit. Dated August 31st, 1900. (Signed) Joseph L. Stotts, Judge."

It is understood that the order of July 11th and August 31st were made after the adjournment of the term at which the exceptions were taken. The court at that term might have granted time for the preparation of bill until and including the first day of the next succeeding term, which would have been the second Monday of November following. The time granted at the term of the trial, however, expired July 12th. Before such expiration the Judge, by an order entered on the journal, extended the time until August 31st, and, within that period, by another order, also entered on the journal, the time was extended until September 30.

It is contended by counsel for defendant in error that the Judge was without power to extend the time after the adjournment of the term, and the case of Schlessinger v. Cook, 8 Wyo. 484, 58 P. 757, is cited to sustain that contention. In that case it was held that, as to exceptions taken on the trial of a cause occurring when the court was in actual session at a regular term, no authority exists for the presentation of a bill after the close of the term, in the absence of a valid term order granting time beyond the term for such presentation; and that an order granting such time made by the Judge in chambers, even if made during the period covered by the term, was not sufficient, for the reason that, although under the statute of 1895 declaring the court open at all times for certain purposes, the order of the Judge might be considered as a court order, still it was not an order of the regular term at which the exceptions were taken; and hence no control of the record had been retained beyond the term. In that case the court at the term had not granted time, the only order being that made by the Judge in chambers.

In the case at bar, however, an order granting time was made by the court at the term, and, indeed, was embraced in the judgment entry; and the time granted extended beyond the adjournment of the term. The court, therefore, retained control of the matter, under the original order, until the expiration of the time allowed, viz., July 12.

The statute expressly authorizes a bill, when presented in time, to be presented to the Judge in vacation, and to be allowed and signed by him. (R. S., Sec. 3743.) Under a former statute the Judge in vacation was held to possess such power, and that a bill might be presented to him within the time granted in the absence of an express provision of the statute to that effect. (McBride v. U. P. Ry. Co., 3 Wyo. 183, 18 P. 635.)

Had the court continued in session until July 12 there can be no doubt that, before the expiration of the time granted, the court might have lawfully extended it; neither can there be any doubt that if the statute rendered it possible for another regular term to intervene before the...