Louisville & N. R. Co. v. McDonald

• Decision Date: 03 February 1902
• Citation: 31 So. 417,79 Miss. 641
• Parties: LOUISVILLE & NASHVILLE RAILROAD COMPANY v. WILLIAM F. MCDONALD
• Court: Mississippi Supreme Court

31 So. 417

79 Miss. 641

LOUISVILLE & NASHVILLE RAILROAD COMPANY v. WILLIAM F. MCDONALD

Supreme Court of Mississippi

February 3, 1902

McDonald, appellee, was plaintiff in the court below; the railroad company, appellant, was defendant there. The plaintiff recovered judgment in the court below against defendant for the loss of his schooner and cargo, caused by the failure of defendant to open its drawbridge after timely notice and signals given. The defendant's motion for a new trial having been overruled, it was allowed sixty days within which to prepare and have authenticated a bill of exceptions. Just before the expiration of the sixty days the circuit judge, in vacation, upon ex parte application and cause shown, made an order extending the time thirty days. The bill of exceptions was prepared, signed by the judge, and filed within ninety days, but after the expiration of sixty days from the adjournment of the court. After its preparation, and before it was signed by the judge, it was presented to appellee's attorneys, but they declined to consider it or read it, upon the ground that the sixty days allowed by order on the minutes of the court for its preparation had elapsed. When the case reached the supreme court appellee moved the court to strike the bill of exceptions from the record.

Motion denied.

Harper & Potter, for the motion.

The statute on bills of exceptions provides that such bills "may be mailed or expressed to the trial judge at any time within sixty days after the end of the term of the court at which the case was tried, which may be extended by order of the court to ninety days instead of sixty days." There is no pretense that any order of court was taken to extend the time, but the record clearly shows that Judge Neville, in vacation, undertook to grant an extension, which extension was manifestly without authority of law. 4 Ency. Plead. & Pract., 350, and authorities cited. A judge in vacation is not "the court."

Gregory L. Smith, contra.

The statute provides that bills of exception may be filed within sixty days after the end of the term of the court at which the case was tried; which time may be extended by order of the court to ninety days instead of sixty. Strictly speaking the time cannot be extended before it has commenced to run nor could the court make any order after the time prescribed has commenced to run, for such time does not begin to run until the term of court has expired. The court might allow ninety days instead of sixty, or the judge might extend the period from sixty to ninety days; to confine the power...