21 Fla. 165 | Fla. | 1885
delivered the opinion of the court:
The motion of the appellees in this case is “to strike from the records herein what purports to be transcribed therein as a bill of exceptions, and the assignment of error based thereon,” upon the.ground that said purported bill of exceptions was not signed by the Judge of the Circuit Court of the Circuit in which the case was tried, nor otherwise established as required by law.
The case was tried in the Circuit Court for Duval county at the spring term, 1884, before Judge Baker, of the 4th Circuit, and the bill of exceptions was signed after the adjournment of the term by Judge Vann, of the 3d Circuit in the latter circuit. It is stated in the bill of exceptions that Judge Baker is “ unable from sickness to sign and settle ” it, and such was the ground of the application to Judge Vann, as is shown by the notice and affidavit in the record.
The statute of Westminster, the second, 13 Edward I, cap. 31, A. D. 1285, is as follows: “ When one that is impleaded before any of the justices doth alledge an exception, praying that the justices will allow it, which if they will not allow, if he that alledged the exception do write the same exception, and require that the justice will put to their seals for a witness, the justices shall do so ; and if one will not another of the company shall,.and if the King, upon complaint made of the justices, cause the record to come before him, and the same exception be not found in the roll, arid the plaintiff show the-exception written, with-
Rule 97, of the Circuit Court Rules, provides that “ the ■bill of exceptions shall be made up and signed during the. term of the court at which the verdict is rendered or trial had, unless by special order further time is allowed. In case such special order is made it shall be entered in the minutes, and-in making up the bill of exceptions the fact that such an order was made shall be mentioned therein or shall otherwise appear in the record.”
Section 4, of chapter 827, of the statutes, A. D. 1851,> MeC.’s Dig., §27, page 337, provides that “ whenever the Judge of a Circuit Court shall be unable from absence, sickness or other cause, to diseharge any duty whatever appertaining to his office which may be required to be performed in vacation or between terms, it shall be the duty of any other Circuit Judge on the application of any party to perform such duties, and to hear and determine all such matters as may be submitted to him; and such judge may diseharge said duties either in his own or any other circuit, and shall be substituted in all respects in the place and stead in the matter aforesaid, of the judge unable * * * to act.”
In Hays, Adm’x, vs. McNealy, 16 Fla., 406, “ a case and exceptions” were presented by appellant to Judge VanNess, of the Eirst Circuit, who had tried the cause. The respondents offered amendments to the same. Judge VanNess resigned before he had settled the “ case and exceptions ” and the Hon. A. E. Maxwell was appointed his successor, and afterwards settled the case and exceptions as amended. This court held that “the rule requiring that
In Ketchum vs. Hill, 42 Ind., 64, the Supreme Court held that “ a person who has been a Judge and presided at the trial of a cause possesses no power to sign a bill of exceptions in such causes after he has ceased to be a Judge. The successor in office of such Judge has full power to sign a bill of exceptions embodying the evidence, and this court is bound to presume that in exorcising such powerhe acted on reliable information.” The statute governing the case in Indiana provided that “ where the decision is not entered on the record or the grounds of objection do not sufficiently appear in the entry, the party excepting must reduce his exception to writing, and present it to the Judge for his allowance and signature. If true the Judge shall sign it, whereupon it shall be filed with the pleadings as a part of the record, but shall not be spread at large upon the order book. If the writing is not true the Judge shall correct it or suggest the correction to be made and sign it.” “ The foregoing authorities” (8 Peter, 291; 28 Ind., 291,) say the court, “conclusively settle the doctrine that Judge Howland was authorized to exercise the same powers, and had the right to act on any case that remained undecided on the docket as fully as his predecessor could have done. If a Judge who has not heard the evidence can render judgment, grant a new trial, and sign the record of a judgment rendered by his predecessor, he surely can settle and sign a bill of exceptions. We entertain no doubt as to his power to
When an order has been made and entered in accordance with Rule 97 the act of settling a bill of exceptions becomes, in our opinion, a duty * * “ to be performed in vacation or between term ” within the meaning of section 4, ■chapter 827 ; and in so far as the question of power is concerned we think it is clear that the statute gives the Judge ■of another Circuit the same authority to act as to a bill of
In Newton vs. Boodle, 54 Eng. C. L. Repts., 795, decided in 1847, it was held that “ where a party has lost the' benefit of a bill of exceptions tendered to the ruling of a Judge sXnisi prius, or at the assizes, by the death of the-Judge, and without any default on his own part, it is not competent to another J udge of the court out of which the record issues to seal the bill of exceptions ; hut in such a case the court will, where the circumstances warrant it, allow the party to move for a new trial, notwithstanding the proper time for so doing has elapsed.” The ground of the decision as to the bill of exceptions is stated thus: “ The-law having provided no remedy for the case of the Chief-Justice dying without having sealed a bill of exceptions, we-thought we had no power to restore the plaintiffs to their former position in this respect.” We think that a succes
II. But it is clear, as argued at the bar, that Rule 97 as to the order for further time has not been complied with. It calls for an order made in term and appearing on the minutes and is positive. No order appears on the minutes. The rule should be applied to and control cases falling within it till rescinded. Thompson vs. Hatch, 3 Pick., 512; Wall vs. Wall, 2 H. & G., 79 ; Owens vs. Ranslead, 22 Ill., 161; 9th Oregon, 121.
Whether or not an entry nunc fro tunc can be made is a question with which the court below must deal first. Spencer vs. Fish, 43 Mich., 226 ; Freeman on Judgments. For the reason that no order appears on the minutes of the court the motion is granted.