Stinson v. Shafer

• Decision Date: 14 October 1893
• Citation: 23 S.W. 651,58 Ark. 110
• Parties: STINSON v. SHAFER
• Court: Arkansas Supreme Court

23 S.W. 651

58 Ark. 110

STINSON v. SHAFER

Supreme Court of Arkansas

October 14, 1893

Appeal from Lafayette Circuit Court, WILLIAM S. EAKIN, Special Judge.

Judgment affirmed.

L. A Byrne for appellants.

1. Contend that the assignment was valid, and should be sustained.

2. Under the order of court, appellants had until the last day of the statutory limit within which to file the bill of exceptions. The time of presentation only was limited to the 25th of March. The case does not fall within the rule in 52 Ark. 554, and 53 id. 415.

Scott & Jones and Montgomery & Moore for appellees.

Time was given to the 25th of March to prepare and tender the bill of exceptions. It was approved by the judge on the 23rd of March, but was not filed until the 12th of June. Hence there is no bill of exceptions in the case. 52 Ark. 354; 53 Ark 415.

OPINION

WOOD J.

The court below gave time beyond term to perfect bill of exceptions in the following order, viz.: "On further motion it is granted said defendants until the 25th day of March, 1891, in which to prepare and tender their bill of exceptions herein to the present judge of this court, which, when approved, signed and filed with the clerk of this court, shall be and become a part of the record in this cause." The bill of exceptions was presented to the judge on the 23rd of March, 1891, was signed by him the latter part of May and filed with the clerk on the 12th day of June following.

Former decisions of this court have settled the practice as to reducing exceptions to writing beyond the trial term. Garibaldi v. Carroll, 33 Ark. 568; Walker v. State, 35 Ark. 386; Toliver v. State, 35 Ark. 395; Carroll v. Saunders, 38 Ark. 216; Carroll v. Pryor, 38 Ark. 283; St. Louis &c. R. Co. v. Rapp, 39 Ark. 558; Adler v. Conway County, 42 Ark. 488; Davies v. Nichols, 52 Ark. 554; Watson v. Watson 53 Ark. 415.

In Watson v. Watson, 53 Ark. 415 supra, the appellant was allowed "until the third day of the Bradley circuit court, to present his bill of exceptions." In the present case appellants were allowed until the 25th of March, 1891, in which to prepare and tender their bill of exceptions. Thus far it will be seen that the two orders are in legal effect exactly the same. But counsel for appellant contends that the latter clause of the order in the present case "which when approved, signed and filed with the clerk of this court shall be and become a part of the record," takes the case out of the rule established in Watson v. Watson. We do not think so. A bill of exceptions, when signed by the judge and filed with the clerk in proper time, becomes, proprio vigore, a part of the record. Bullock v. Neal, 42 Ark. 278. Bills of exceptions frequently conclude with the language above quoted, but it is merely pro forma. If the object of the learned counsel in adding this language to the order was, as he states, to get the benefit of the statutory limit in the event the bill was not perfected on or before the day named, then he should have compassed his purpose by an order to that effect in pointed and definite terms. It is conceded that this language of itself fixes no time at all, but we are asked to construe it to mean the statutory limit. No such sweeping phraseology can have that effect. The time may be extended to the last day of succeeding term (Mansf. Dig. 5157); but, when extended, a day certain must be fixed to come within the prescribed limit. In Garibaldi v. Carroll, 33 Ark. 568, the court say that it is not implied by the language of the statute "that the time, when given, if not specifically limited, will extend to the last day of the next term. * * * And it cannot be conceived, with any reason, that giving time to a...