Carroll v. Pryor

38 Ark. 283

• Court: Supreme Court of Arkansas
• Decided: November 15, 1881
• Status: Published

Opinion

Eakin,. J.

The bill of exceptions in this cause was not signed and ordered to be made matter of record until the second term after the motion for a new trial. Timé had been given until the next term, but it. was not filed then, nor is there even the barest suggestion of any reason why it was not. At the time of signing, a record entry was made reciting that the attorneys on both sides conceded that the facts therein stated were true; and explaining that the .judge of the court had signed it-then, to give the parties the benefit of the adjudication of this court upon the matter. It is expressly stated, however, that the signing and admitting the bill to record was without consent.

Originally, bills of exceptions were required to be taken, .reduced to writing, signed, and made matter of record during the trial; upon the spot — “dum fervet opus.” It is much the' safest way; but for convenience, the practice obtained of giving time, at first during the term, and after-wards to a later day. Any considerable time after trial, is ;still unsafe, although permissible. It cannot be expected of a judge of ordinary memory, trying many cases, to carry in his mind a perfectly clear conception of all the material evidence in any. ease. Slight changes of expression give different shades of meaning. Nor will it do to allow bills of -exception to be, at any time, made up and filed by agreement of attorneys. It would not only be unsafe to litigants, but might lead, if encouraged, to the practice of bringing matters here for adjudication upon questions never before the court of original jurisdiction at all.

The Statute has limited the time which a judge may give-for reducing a bill of exceptions to writing. It cannot extend beyond the succeeding term, and ought not, as a matter of sound discretion, to extend beyond the time-fairly necessary to allow the attorney, with reasonable-diligence, to prepare it. Courts of Chancery are competent to relieve against any hardships arising from accident, or mistake, or fraud, if from any such cause the bill could not be presented in the time allowed.

Disregarding the bill of exceptions, we find no error in. the record.

Affirm.