Leake v. McJones

7 P.R. Fed. 620

• Court: District Court, D. Puerto Rico
• Decided: March 29, 1915
• Docket: No. 260
• Status: Published

Opinion

HamiltoN, Judge,

delivered tbe following opinion:

A motion is made in tbis case to “extend tbe term” now running to a close in order that tbe bill of exceptions may be filed witbin time. It seems that many of tbe papers in tbis case are lost or mislaid, and it was found to be impracticable to get tbe exceptions and other parts of tbe record ready before tbe close of tbe present term on March 11.

A proper showing seems to be made for extension of time, and tbe court is disposed to grant all that is necessary. Counsel insists that tbe order should read that tbe term is extended.

Tbe organic act of Porto Eico, § 34, which governs tbe proceedings of tbis court, says that tbis court shall bold several terms, one at San Juan beginning tbe second Monday in October, and another at San Juan beginning tbe second Monday in April. It has previously been decided by tbis court that tbe January term held at Ponce does not, for all practical purposes, interfere with tbe further running of tbe October term at San Juan. Tbe result is that tbe October term must expire before tbe April term begins, that is to say, this year, must expire at' midnight April 11. Tbe act creating tbis court having, therefore, in effect said that tbe term expires on a certain day, it is not perceived how, on principle, tbe court, which is subject to tbe act, can, for any purposes, make tbe term longer.

It is true that some courts have a rule for continuing tbe term upon order of tbe court. Tbis was tbe case with tbe supreme court of tbe District of Columbia, and tbe practice was not disapproved by tbe United States Supreme Court in tbe case of Hume v. Bowie, 148 U. S. 245, 37 L. ed. 438, 13 Sup. Ct. Rep. 582; Coughlin v. District of Columbia, 106 U. , 27 L. ed. 74, 1 Sup. Ct. Rep. 37. There is in the Revised Statutes governing the supreme court of the District of Columbia a distinction between a special term and a general term, which may make some difference in the matter. The Federal district court for Porto Rico has no such difference in terms, and, moreover, has no rule like that of the District of Columbia which provides for prolongation of the term by adjournment in order to prepare a bill of exceptions.

The supreme court says the provision as to prolongation of the term for the particular purpose is a mere difference in phraseology, and not of the substance, from the practice in many jurisdictions of entering an order granting additional time after the expiration of a term in which to settle bills of exceptions. There can be no question that the judge has the-right to make an express order during the term allowing a period expiring after the time within which to prepare the bill of exceptions. Jackson ex dem. Bradstreet v. Thomas, 4 Pet. 102, 7 L. ed. 796. There is no doubt that an order at the-next term after judgment directing that the bill of exceptions-be filed as of the date of the trial is a nullity and does not make the bill of exceptions a part of the record. Müller v. Ehlers, 91 U. S. 249, 23 L. ed. 319; United States v. Jones, 149 U. S. 262, 37 L. ed. 726, 13 Sup. Ct. Rep. 840. The time may be prolonged by consent, special order, or standing rule.. Michigan Ins. Bank v. Eldred, 143 U. S. 293, 36 L. ed. 162, 12 Sup. Ct. Rep. 450.

The theory of a term is that it is to all intents and purposes-as one day, although it may extend over many calendar days. Bouvier’s Law Dict. s. v. Term. The general rule is that a bill of exceptions must be settled at the term at which the-trial was bad. the theory of this being that settling the bill'1 is part of the tidal. Practically this is interpreted as meaning., that the bill must be settled or an order extending the time for-settling made at the. trial term. There is no statute on the-subject governing this court one way or the other, and the-court will follow the practice which has been usual in this court,, that is to say, will either settle the bill at the trial term, or at, the trial term fix some time within which it must be done. Practically it may, as the Supreme Court said in Hume v.. Bowie, above, amount to the same thing as extending the term,, for if the court extends the time for doing something which, should be done at the trial term, it is practically extending, the trial term. Nevertheless, it is not doing so in so many words. It is merely at the trial -term doing all that is necessary in the ease.

On the whole, therefore, it would seem better to follow the the practice which has heretofore obtained in this court, of calling the order in such a matter one to extend the “time,” and not one to extend the “term,” and the time ashed for in this, motion will be granted.