Miller v. Morgan

67 F. 82, 14 C.C.A. 312, 1894 U.S. App. LEXIS 2626

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 18, 1894
• Docket: No. 327
• Status: Published

Opinion

PARDEE, Circuit Judge.

Judgment was rendered in this case on ’May 30, 1894, and on June 3, 3.8S4, a motion for a new trial was made, which, on July 2d, was overruled; the overruling order reciting that “the defendants be allowed twenty days from this date within which time to prepare, submit, and file bills of exception herein.” The court adjourned for the term on July 11, 1894. No bills of exception were prepared and filed within the 20 days allowed by the order of the court, but some 8 days after the expiration of the time, to wit, on the 30th day of July, 1894, the plaintiff in error, without notice to the defendant in error, and without his consent, and without any standing rule of the court authorizing the same, applied to the judge who tried the case, and obtained an order, to wit: “In this case the defendants are allowed until August 10, 1894, to prepare and present bills of exceptions.” No exceptions were filed within the time allowed by this order, but bills of exception were prepared and submitted to the trial judge, and by him signed and delivered' to the clerk, who, on the 20th day of August, 1894, indorsed thereon: “Filed as of date Aug. 30th, 1894, by order of John B. Rector, U. S. Dist. Judge.”

The bills of exception were improvidently allowed. U. S. v. Jones, 149 U. S. 262, 13 Sup. Ct. 840, and cases there cited. See, also, Railroad Co. v. Russell, 60 Fed. 501-503, 9 C. C. A. 108; U. S. v. Carr, 61 Fed. 802, 10 C. C. A. 80. As the errors assigned arise wholly upon the bills of exception, we are compelled to affirm the judgment; and it is so ordered.