Lengelsen v. McGregor
| Decision Date | 08 March 1904 |
| Docket Number | 20,030 |
| Citation | 70 N.E. 248,162 Ind. 266 |
| Parties | Lengelsen v. McGregor et al |
| Court | Indiana Supreme Court |
Original Opinion of May 26, 1903, Reported at: 162 Ind. 258.
Appellant in support of his petition for a rehearing, very earnestly contends that we erred in holding that his bill of exceptions containing the evidence was not properly in the record. He relies upon the maxim, "Actus curioe neminem gravabit," to protect him against the loss of his bill of exceptions by reason of the absence of the trial judge from the State when he, within the time allowed, did all he could to present the bill for settlement. The pith of his argument is that a court will not be permitted to throw a litigant off his guard by granting him a time beyond the term to prepare a bill of exceptions, and then defeat the privilege by absenting himself from the State until the time has expired. We have no disposition to deny the justness and reasonableness of the maxim invoked, to wit, "an act of the court shall prejudice no one," and will unhesitatingly give the principle force and effect in a case where it applies, and we have authority to do so. It is doubtless the law that a litigant who has been awarded time for a bill of exceptions, and who has successfully completed his bill within the time, and who has been diligent in its preparation and presentation, should be afforded an opportunity to present it, and should not be deprived of the bill by the absence of the trial judge from the State. State, ex rel., v. Dyer, 99 Ind. 426; Fechheimer v. Trounstiene, 12 Colo. 282, 20 P. 704; Stonesifer v. Kilburn, 94 Cal. 33 29 P. 332.
But what we decided in the original opinion, and what we reaffirm here, is that the signing of exceptions under and at a date subsequent to the time allowed for the signing and filing of the same imparts no validity to the instrument as a bill of exceptions. The statute, though remedial in character, is mandatory, and prescribes the precise terms upon which exceptions may, after the term, be authenticated and incorporated into the record. And it is plain that we have no authority to treat any document or instrument of writing as a bill of exceptions unless upon its own face it shows affirmatively that the terms of the statute have been complied with, and, among other things, that it was presented to, or was settled and signed by, the trial judge within the time granted by the court. The doctrine rests upon the principle that the statute being the only authority for a bill of exceptions after adjournment of the court it can only be had upon the terms of the statute, and a bill signed by the presiding judge after the expiration of the time lawfully fixed is without authority or jurisdiction, and amounts to nothing more than if signed by the clerk. Rigler v. Rigler, 120 Ind. 431, 22 N.E. 776; Riverside Rubber Co. v. Midland Mfg. Co., 63 Ohio St. 66, 57 N.E. 958; Neuman v. Becker, 54 Ohio St. 323, 46 N.E. 706; Walker v. Equitable Mortgage Co., 100 Ga. 84, 26 S.E. 75; 3 Cyc. Law & Proc. 38; Daugherty v. Western Union Tel. Co., 61 F. 138. After expiration of the time allowed, the judge loses jurisdiction over the subject-matter, and can not be reclothed with it by agreement of the parties. Long v. Newhouse, 57 Ohio St. 348, 366, 49 N.E. 79; Morris v. Watson, 61 Ill.App. 536. A failure of the stenographer to prepare the longhand manuscript of the evidence, though the party excepting has been diligent, is ineffectual as an excuse for signing or filing of a bill after time. Horbach v. City of Omaha, 49 Neb. 851, 69 N.W. 121. Pressure of official business upon the trial judge furnishes no reason or authority for him to sign a bill after the time has expired. Walker v. Equitable Mortgage Co., supra.
To take cognizance of a bill of exceptions that shows upon its face to have been created in disobedience of the statute would be to hold that we have discretionary power to dispense with the law whenever we deem it proper to do so. In such cases, therefore, the only way for an aggrieved party to get his exceptions into the record is to procure the insertion of the proper date of presentation nunc pro tunc, and thus send up on appeal a bill fair upon its face. Rigler v. Rigler, supra; Kirby v. Bowland, 69 Ind. 290; Walton v. United States, 22 U.S. 651, 9 Wheat. 651, 6 L.Ed. 182; Ferris v. Commercial Nat. Bank, 158 Ill. 237, 239, 41 N.E. 1118; West Chicago St. R. Co. v. Morrison, etc., Co., 160 Ill. 288, 43 N.E. 393; Ewbank's Manual, § 31.
And if a party is able to show that he has been diligent in the preparation and presentation of his bill, and in good faith and in due season had his prepared bill at the court, office residence, or other place within the judicial circuit where the judge might reasonably be expected to be, and was prevented from presenting the same by reason of the absence of the judge from the State or judicial circuit, the act is such a presentation of the bill...
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