Dreyfus v. Cage

62 Miss. 605 | Miss. | 1885

Campbell, C. J.,

delivered the opinion of the court.

Bills of exception are regulated by statute §§ 1715-1718 of the code. Two kinds are provided for, viz.: To any ruling of the court made before the jury retire from the box, and to overruling motions for new trial. By § 1715 the party aggrieved by any decision of the court may tender to the judge a bill of exceptions to his opinion, stating therein the matters of law wherein he is supposed to err, and the judge shall be bound to sign the same, and the bill of exceptions so signed shall be made and considered a part of the record in the cause. Being a part of the record, it is not within the power of the judge who signed it, after the expiration of the term of the court, or of this court, to make or cause to be made any alteration in it. Bridges v. Kuykendall, 58 Miss. 827.

No statute authorizes an amendment of a bill of exceptions. The assumption is that no mistake can occur in a bill of exceptions, as certainly none should be made or is likely to be if the course plainly indicated by the statute is pursued.

The manifest contemplation of the statute is the signing of a bill of exceptions by the judge when a correct one is tendered to him. In case of exception to overruling a motion for a new trial, the bill of exceptions should, if tendered and found to be correct during the term, be then signed. Section 1718 is a limitation on the power of the judge as to the time within which bills of exception must be signed. They cannot lawfully be signed afterward. They should be signed when tendered. If not, the only remedy of the party aggrieved is to get two attorneys-at-law, who may be present, etc., to sign it, as provided for by § 1717. When signed as provided for by statute, the bill of exceptions becomes a part of the record in the cause, and as such is inviolable.

Motion denied.