Springfield v. Fulk

• Court: Arkansas Supreme Court
• Writing for the Court: MCCULLOCH, C. J.
• Citation: Springfield v. Fulk, 131 S.W. 694, 96 Ark. 316 (Ark. 1910)
• Decision Date: 31 October 1910
• Parties: SPRINGFIELD v. FULK

131 S.W. 694

96 Ark. 316

SPRINGFIELD v. FULK

Supreme Court of Arkansas

October 31, 1910

Mandamus to Pulaski Circuit Court; F. Guy Fulk, Judge; writ awarded.

Bratton Fraser & Bratton, for petitioners.

Kirby's Digest, § 6225, settles the duties of the trial judge with reference to signing the bill of exceptions. If the bill of exceptions presented is true, he must allow and sign it if not true, it is his duty to correct it, or cause it to be corrected, and sign it. Upon his failure to perform this duty when a bill of exceptions is presented within the time required by law or the order of the court, mandamus will lie to compel him to do so. 3 Cyc. 24; Id. 47, note 30; 35 Ark. 568; 129 Ill. 777. When the bill of exceptions is presented within the time allowed, the appellant's rights will not be prejudiced by the judge's delay in signing it. 3 Cyc. 44; 12 P. 202; 58 S.W. 440; 6 Ky. Law Rep. 736; 12 Id. 989; 80 Me. 270; 158 Ill. 237; 160 Ill. 288.

J. W Blackwood, for respondent.

OPINION

MCCULLOCH, C. J.

Petitioners have appealed from an adverse judgment of the circuit court of Pulaski County in the matter of the contest of the will of J. P. Steen, deceased, and they now seek a mandamus requiring the Honorable Guy Fulk, judge of said court, before whom the case was tried, to sign a bill of exceptions. The motion for new trial was overruled by the circuit court on February 25, 1910, and an order was entered giving ninety days from that date within which to prepare and file their bill of exceptions. The time expired therefore on May 27, 1910.

A transcript of the oral proceedings, covering several hundred pages, was prepared by a stenographer, and delivered to counsel for petitioners to be incorporated into a bill of exceptions, and the bill was by them delivered to opposing counsel for the latter's examination and approval. Petitioner's counsel obtained the bill of exceptions from opposing counsel on May 25, the latter declining, however, to approve it on account of alleged inaccuracies; and on the morning of May 26 it was delivered to Judge Fulk to be signed. Judge Fulk was that day engaged in jury trials, and, after a partial examination of the bill of exceptions, he concluded that it would need correction, and he directed the clerk to file the unsigned bill, pending his examination thereof.

The time allowed for filing the bill of exceptions passed without anything further being done, but thereafter Judge Fulk took up the matter with counsel on both sides, in an effort to have the proper corrections made, so that he could sign the bill. Counsel for appellee then objected to the signing of the bill of exceptions after the time allowed by the order of court, and made a motion in the circuit court to strike from the records the unsigned bill, and this motion was sustained.

It seems to be settled that mandamus is the proper remedy to compel the signing of a bill of exceptions--not to require the trial judge to insert any particular matter in the bill, but to sign a bill of exceptions which he approves as being correct. Elliott, Appellate Procedure, § 516; State v. Gibson, 187 Mo. 536, 86 S.W. 177; People v. Van Buren, 41 Mich. 725, 49 N.W. 924.

The statute relative to the signing of bills of exception is as follows: "Where the decision is not entered on the record, or the grounds of objection do not sufficiently appear in the entry, the party excepting must reduce his exception to writing and present it to the judge for his allowance and signature. If true, it shall be the duty of the judge to allow and sign it; whereupon it shall be filed with the pleadings as a part of the record, but not spread at large upon the order book. If the writing is not true, the judge shall correct it, or suggest the correction to be made, and, when corrected, sign it." (Section 6225, Kirby's Digest).

It will be seen from this statute that a party has the right to present a bill of exceptions which he conceives to be correct, and that, if it is correct, it is the duty of the judge to sign it, or, if he finds it incorrect, it is his duty to correct it, and then sign it. There are numerous decided cases to the effect that "where a bill of exceptions is presented to the trial judge within the time prescribed, the rights of appellant or plaintiff in error will not be prejudiced by the judge's delay in signing it. In such cases the maxim actus curiae neminem gravabit applies." 3 Cyc. 44; 3 Am. & Eng. Enc. Pl & Pr., 474; Elliott, App. Proc., § 802; Proctor Coal Co. v. Strunk, 28 Ky. L. Rep. 241, 89 S.W. 145; Toner v. South Covington, etc., Str. Ry. Co., 58 S.W. 439, 440; Johnson v. Tanner, 126 Ga. 718, 56 S.E. 80; Field v. Gellerson, 80 Me. 270, 14 A. 70; West Chicago St. Rd. Co. v. Morrison, etc., Co., 160 Ill. 288; Denver v. Capelli, 3 Colo. 236; Cochrane v. Little, 71 Md. 323, 18 A. 698; People v. Judge Super. Ct., 41 Mich. 725, 49 N.W. 924; Davis v. Patrick, 122 U.S. 138, 30 L.Ed. 1090, 7 S.Ct. 1102.

In Ray v. Grove, 6 Ky. L. Rep. 736, the court said: "Where the time for filing a bill is extended to a day in the next term, and the bill is tendered within the time thus allowed, though not signed and filed until a subsequent day, the requirements of the law have been complied with; and this is true, though the court may find it necessary...