Routh v. Thorpe

• Decision Date: 11 March 1912
• Citation: 145 S.W. 888,103 Ark. 46
• Parties: ROUTH v. THORPE
• Court: Arkansas Supreme Court

145 S.W. 888

103 Ark. 46

ROUTH v. THORPE

Supreme Court of Arkansas

March 11, 1912

Appeal from Madison Circuit Court; J. S. Maples, Judge; affirmed.

Judgment affirmed.

W. N Ivie, for appellant. Hugh A. Dinsmore, for appellee.

The judgment should be affirmed because there is no evidence that the bill of exceptions was filed with the clerk within the time allowed by the trial court. 42 Ark. 488; 35 Ark. 396; Id. 386; 39 Ark. 558; 53 Ark. 415; 58 Ark. 110; Kirby's Dig., § 6225.

OPINION

FRAUENTHAL, J.

This is an action instituted by Henry Thorpe against E. A. Routh to recover damages for fraud and deceit. It was alleged that the defendant, by the false and fraudulent representations of his duly authorized agent, had induced the plaintiff to purchase a tract of land owned by him, and it was sought to recover the damages which the plaintiff had thereby sustained. To this complaint the defendant duly filed his answer, and the case was thereupon tried by a jury upon the issues thus joined, resulting in a verdict in favor of the plaintiff. The defendant has prosecuted this appeal, seeking to reverse the judgment entered upon the verdict. The grounds assigned by him why the judgment should be reversed relate to errors alleged to have been committed in the trial of the case.

To present such alleged errors, it is necessary that they should appear in the record, upon which only we can pass. To make the matters thus complained of a part of the record, they must be presented in a bill of exceptions, duly signed by the trial judge and filed with the clerk so as to become a part of the record. In order for a bill of exceptions to become a part of the record, it is necessary that it be signed by the trial judge and filed with the clerk within the time fixed by the court while in session. In the case of Adler v. Conway County, 42 Ark. 488, it was held, quoting syllabus: "When time is given to reduce exceptions to writing, the bill of exceptions must be prepared and signed by the judge, and filed with the clerk, so as to become a part of the record, within the time given."

In the case of Stinson v. Schafer, 58 Ark. 110, 23 S.W. 651, the court said: "Where time is given to a party beyond the term to prepare and tender a bill of exceptions to the judge, which, when approved, signed and filed with the clerk of the court, shall be and become a part of the record in the cause, a bill of exceptions presented to the judge within that time will not become a part of the record unless signed by him and filed with the clerk before the expiration of the time allowed." See also Toliver v. State, 35 Ark. 395; Walker v. State, 35 Ark. 386; St. Louis, I. M. & S. Ry. Co. v. Rapp, 39 Ark. 558; Watson v. Watson, 53 Ark. 415, 14 S.W. 622; Roberts & Shafer Co. v. Jones, 82 Ark. 188, 101 S.W. 165; Madison County v. Maples. ante p. 44.

It follows that, before a purported bill of exceptions...