Martin v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 10 May 1890
• Citation: 13 S.W. 765
• Parties: MARTIN <I>v.</I> ST. LOUIS, I. M. & S. RY. CO.
• Court: Arkansas Supreme Court

13 S.W. 765

MARTIN

v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Arkansas.

May 10, 1890.

Appeal from circuit court, Pulaski county; J. W. MARTIN, Judge.

The material parts of the bill of exceptions upon which this question was tried were as follows: "Be it remembered that on this day the hearing of the petition for amending the bill of exceptions herein came on, and, upon presentation of the same, said petitioner presented to the court sundry written instructions, which purport to have been given by the court on the trial of this cause, said written instructions being signed for the purpose of identification by the judge of this court at the time said bill was submitted to him and signed, this being during the vacation of the Pulaski circuit court. Said petitioner also offered parol evidence to prove to the court that the said instructions were the same as were written out and used on the trial of this cause; that they had been deposited with the clerk of this court at the time that the bill of exceptions was given him to be filed; but that they were not marked, `Filed,' but had been kept with the papers in the case ever since. (The judge of the court announced from the bench that he was satisfied that the written instructions thus produced were those which were used on the trial of this cause, and were the same which were referred to in the bill of exceptions.) But the court, having heard arguments of counsel, was of the opinion that it had no power to permit the said amendment to be made after the lapse of the time during which, by law, the said bill of exceptions alone could be filed. And the court, therefore, refused to hear said testimony and rejected said petition; to which rulings the petitioner at the time excepted, and time was given during the present term during which said petitioner may file a bill of exceptions.

U. M. & G. B. Rose, for appellant. Dodge & Johnson, for appellee.

COCKRILL, C. J.

A bill of exceptions, when signed by the judge and filed by the clerk, becomes a part of the record of the cause in which it is taken, and, like any other part of the record, may at a subsequent term be amended by the court on petition and notice to the adverse party, but cannot be legally altered in any manner by the judge. The right to amend is governed by the same rules which obtain in the amendment of any other record. In those states where the rule exists of allowing no amendment of a record, save where there is a record or a memorial to amend by, the bill of exceptions cannot be amended on any other proof. Dougherty v. People, 118 Ill. 160, 8 N. E. Rep. 673; 4 Chit. Pr. 13. But all the authorities seem to concur in holding that the court in which the record is made has the same power to amend the bill of exceptions, by a nunc pro tunc order to cause it to speak the truth, that it has over any other part of the record. Chit. Pr., supra; Heinsen v. Lamb, 117 Ill. 552, 553, 7 N. E. Rep. 75; State v. Clark, 67 Wis. 229, 30 N. W. Rep. 122. The power was exercised by this court in the case of Freel v. State, 21 Ark. 226. In that case the bill of exceptions, as allowed by the trial...