Sorg v. Wells

142 N.W. 179, 32 S.D. 157, 1913 S.D. LEXIS 185

Opinion

McCOY, J.

This is a motion by way of order to show cause, on the part of appellant, to have the original record returned to the lower court, to the end that a bill of exceptions may be set-led. The facts as to prior procedure appears in Sorg v. Wells, 32 S. D. -, 141 N. W. 384. The former opinion in this case striking the bill of exceptions was based on the ground that the trial court had lost jurisdiction to settle the bill of exceptions, in the absence of good cause shown, as held in McGillycuddy v Morris, 7 S. D. 592, 65 N. W. 15.

[1] After the time for settling a bill of exceptions has expired, there must exist and be shown some good cause for then permitting such settlement. So far as the record shows, there does not and cannot exist any such good cause as would authorize or justify the trial court in now permitting the settlement of a bill of exceptions in this case. It appears that appellants deliberately permitted and allowed the time in which to settle a bill of exceptions to expire, and deliberately permitted the same to remain expired for some 18 months before in any manner attempting to have the same settled.

[2] .Before this court will return the record in a case'to permit a bill of exceptions to be settled, there must be a- showing made in this court that good cause exists, and such as would, authorize the lower court to excuse the delay. Sherin v. Eastwood, 32 S. D. 95, 142 N. W. 176.

The motion to return the record is denied.