Martin v. St. Louis, Iron Mountain & Southern Railway Co.

• Decision Date: 10 May 1890
• Citation: 13 S.W. 765,53 Ark. 250
• Parties: MARTIN v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY CO
• Court: Arkansas Supreme Court

13 S.W. 765

53 Ark. 250

MARTIN v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY CO

Supreme Court of Arkansas

May 10, 1890

APPEAL from Pulaski Circuit Court, J. W. MARTIN, Judge.

Appellant perfected an appeal to this court in a case where he was plaintiff and appellee defendant. Appellee sued out a writ of certiorari to procure the original skeleton bill of exceptions. Subsequently appellant filed a petition in the court below which stated that, in the bill of exceptions taken in said appeal, the instructions were not set forth with certainty, and prayed that it might be amended by inserting the original drafts of them. The defendant having been notified, appeared by counsel, and on a hearing of the application it was overruled.

Plaintiff filed a bill of exceptions which is 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 the 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 cause 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 argument of counsel, was of the opinion that it had no power to permit the said amendment to be made after the lapse of the term and 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." Petitioner excepted and appealed.

Cause remanded.

U. M. & G. B. Rose, E. W. Kimball, S. R. Allen and John McClure for appellant.

After the lapse of the term the court had the power, on a proper showing, to amend the record, so as to make it speak the truth. 40 Ark. 229; 51 Ark. 323.

A bill of exceptions is a record, and may be amended to speak the truth. 17 Ark. 154; 21 Ark. 226; 4 Chitty, Gen. Pr., 13; 117 Ill. 549; 118 Ill. 160; 67 Wis. 229; Hayne on New Tr. and Appeal, sec. 160.

The instructions, having been placed with the papers in the case when the bill of exceptions was filed, and so kept, were filed, though not so marked. 28 Ark. 249; 43 Ark. 148. See also 21 Ark. 329.

Dodge & Johnson for appellee.

This is simply an effort to cure a fatal defect in the original bill of exceptions; a fatal omission in the person drafting the same. The instructions asked and refused are not inserted nor is there any order to the clerk to insert them, nor any reference thereto.

This court has invariably ruled that defects or omissions of this character cannot be amended by nunc pro tunc order. 45 Ark 485; Mansf. Dig., sec. 5160. After the time allowed for preparing and filing a bill of exceptions has expired, the circuit court loses all control over the same, and cannot exercise any discretion whatever. 45 Ark. 102; 39 Ark. 216; 119 Mass. 208; 121 Mass. 165; 123 Mass. 579; 124 Mass. 241; 69 Ind. 290; 98 Ill. 235; 56 Iowa 335; 8 Bush, 480; 6 Bush 27; 5 Col. 133; 17 Munroe, 603; 90 Ind. 404; 97 Ind. 404.

Review cases in 17 Ark. 15; 217 Ark. 226. In the first case, the bill of exceptions was not amended. In the latter, a mere clerical error was committed which was allowed to be corrected.

In this case no facts exist to warrant a nunc pro tunc order. 45 Ark. 107. See also 40 Ark. 229; 45 Ark. 489-491; 51 Ark. 323.

28 Ark. 249, and 43 Ark. 148, have no bearing on this case.

OPINION

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 memorial to amend by, the bill of exceptions cannot be amended on any other proof. Dougherty v. People, 118 Ill. 160, 8 N.E. 673; 4 Chitty's Gen. Pr., p. 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. Chitty's Pr., supra; Heinsen v. Lamb, 117 Ill. 549, 7 N.E. 75; State v. Clark, 67 Wis. 229, 30 N.W. 122. The power was exercised by this court in the case of Freel v. State, 21 Ark. 212. In that case the bill of exceptions as allowed by the trial judge, showed that the offense, of which the appellant was convicted, had been committed after the indictment was found. At a subsequent term of the court in which the cause was tried, the error was corrected by causing the bill of exceptions to recite the true date of the offense, which was prior to the return of the indictment. The opinion informs us only that the error occurred in drafting the bill of exceptions.

The right to amend does not mean the power to allow a new bill of exceptions, for when the term has elapsed and the time given for its preparation passed, no bill can be allowed, and the party who relies upon his exceptions is without...