Louisville & N. R. R. Co. v. Turner

• Decision Date: 18 December 1883
• Parties: Louisville & Nashville R. R. Co. v. Turner.
• Court: Kentucky Court of Appeals

81 Ky. 489

5 Ky.L.Rptr. 542

Louisville & Nashville R. R. Co. v. Turner.

Court of Appeals of Kentucky.

December 18, 1883

1. Appellant was given until the third day of the succeeding term to file a bill of exceptions. He failed to do it. On the fourth day of the succeeding term an order was made giving until the eighth day to file it, and, after another extension, it was filed.

2. The appellant should have filed his bill of exceptions on or before the third day of the succeeding term.

3. The court will not consider the bill of exceptions as any part of the record.

APPEAL FROM EDMONSON CIRCUIT COURT.

UPON MOTION TO STRIKE OUT BILL OF EXCEPTIONS FROM THE RECORD.

RODES &amp SETTLE AND C. W. HINES FOR APPELLEE.

1. The record does not show that the bill of exceptions was filed on or before the third day of the succeeding term.

2. The court had no power to further extend the time for filing it after having once extended it.

AGAINST THE MOTION.PORTER & PORTER AND W. LINDSAY FOR APPELLANT.

We file the affidavit of Jno. M. Porter showing that the extensions were made with the express consent of the leading counsel for appellee; that he was actually instrumental in having the order of extension made.

OPINION

HARGIS CHIEF JUSTICE:

The appellant was given time until the third day of the term succeeding that in which the verdict and judgment were rendered, to prepare, present and file a bill of exceptions.

No notice was taken of the subject, or order made or asked for extending the time to present and file the bill of exceptions until after the expiration of the third day of the term mentioned.

On the fourth day of the term an order was made extending the time until the eighth day of the term to prepare and file the bill, and, after another extension, it was offered and filed. The appellee moved to strike the bill of exceptions from the record, on the ground that it is not legally a part of the record, and the counsel for appellant filed an affidavit stating that appellee's leading counsel consented to the extension, and agreed to have the orders made for that purpose; but the latter specifically denies the agreement, leaving this controverted fact in equipoise, and illustrating the danger to the security to the rights of the successful party which would follow a consideration by this court of anything but what is shown by the record on such a question.

The consideration by us of ulterior...