McElfatrick v. Coffroth

Indiana Supreme Court

McElfatrick v. Coffroth

29 Ind. 37

CourtIndiana Supreme Court

DecidedNovember 15, 1867

StatusPublished

Cited by6 cases

This text of 29 Ind. 37 (McElfatrick v. Coffroth) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McElfatrick v. Coffroth, 29 Ind. 37 (Ind. 1867).

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Opinions

Ray, J.

The only errors relied upon for a reversal of this case are presented by what purports to be a bill of exceptions. It is obj ected, by the appellee, that this paper forms no part of the record. Time was given to prepare a bill of exceptions until the third day of the next term of the court. On the third judicial day of the next term, the court, on its own motion, and without any eause shown of record, made an order giving the appellant until the fifteenth day of the following month to prepare said bill. We have heretofore ruled that no such extension of time can be given, unless upon notice to the adverse party. Sherman et al. v. Crothers, 25 Ind. 417. The paper filed recites that the parties were both present in court. Upon this phase of the subject we have not ruled, but it seems to us to present a serious question, whether, when the time has been fixed by the court, and the final judgment has been entered and the term of court has passed, the jurisdiction of the- court to grant any [38]*38new extension of time has not ceased. The statute requires that an exception to a decision of the court must be taken at the time the decision is. made, but time may be given to reduce the exception to writing, but not beyond the term, unless by special leave of the court. The requirement that the exception be taken at the time the ruling is made, is in accordance with the common law. 2 Tidd’s Prac. 863. Our statute clearly implies that while time may. be given, in all eases, to reduce the exception to writing during the term, yet there should be some special and sufficient reason for extending, in any case, the liberty beyond the term of the court. While, therefore, we do not decide whether or not it be within the power of the judge, when such liberty has been given in any special ease, to grant a new extension of time before the expiration of the date limited, and while the court is in session at a subsequent term, we do not regard it.as unreasonable to require that when such leave is granted there should at least be a showing of record, that we may judge whether there existed any reasonable eause for the exercise of such a power, if we should consider it possessed by the court. It is most important to secure accuracy in a bill of exceptions, and to that end the bill should bfe prepared and presented while the matter is clear in the memory of the court and counsel.

We cannot regard the paper in the record as a bill of exceptions, and must therefore affirm the judgment, with costs.

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Ray, J.

The only errors relied upon for a reversal of this case are presented by what purports to be a bill of exceptions. It is obj ected, by the appellee, that this paper forms no part of the record. Time was given to prepare a bill of exceptions until the third day of the next term of the court. On the third judicial day of the next term, the court, on its own motion, and without any eause shown of record, made an order giving the appellant until the fifteenth day of the following month to prepare said bill. We have heretofore ruled that no such extension of time can be given, unless upon notice to the adverse party. Sherman et al. v. Crothers, 25 Ind. 417. The paper filed recites that the parties were both present in court. Upon this phase of the subject we have not ruled, but it seems to us to present a serious question, whether, when the time has been fixed by the court, and the final judgment has been entered and the term of court has passed, the jurisdiction of the- court to grant any [38]*38new extension of time has not ceased. The statute requires that an exception to a decision of the court must be taken at the time the decision is. made, but time may be given to reduce the exception to writing, but not beyond the term, unless by special leave of the court. The requirement that the exception be taken at the time the ruling is made, is in accordance with the common law. 2 Tidd’s Prac. 863. Our statute clearly implies that while time may. be given, in all eases, to reduce the exception to writing during the term, yet there should be some special and sufficient reason for extending, in any case, the liberty beyond the term of the court. While, therefore, we do not decide whether or not it be within the power of the judge, when such liberty has been given in any special ease, to grant a new extension of time before the expiration of the date limited, and while the court is in session at a subsequent term, we do not regard it.as unreasonable to require that when such leave is granted there should at least be a showing of record, that we may judge whether there existed any reasonable eause for the exercise of such a power, if we should consider it possessed by the court. It is most important to secure accuracy in a bill of exceptions, and to that end the bill should bfe prepared and presented while the matter is clear in the memory of the court and counsel.

We cannot regard the paper in the record as a bill of exceptions, and must therefore affirm the judgment, with costs.

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Bluebook (online)

29 Ind. 37, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcelfatrick-v-coffroth-ind-1867.

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