12 Colo. 282 | Colo. | 1888
In regard to the authentication of bills of exceptions, some difference exists in the position taken by various courts of last resort; but, in our judgment, the view that such bills must be signed and sealed by the judge whose rulings are excepted to, not only rests upon the better reason, but is also sanctioned both by statute and by the weight of authority. Morse v. Evans, 6 How. Pr. 445; Law v. Lansing, 8 Cow. 746; Railroad Co. v. Marseilles, 107 Ill. 313; People v. Lee, 14 Cal. 510; Davis v. President, etc. 20 Wis. 194.
The wisdom and propriety of this rule are so obvious as scarcely to justify mention. The sole purpose of requiring judicial authentication of such bills is to preserve a correct transcript of matters dehors the record proper for use in the court of review. The presiding judge is familiar with these matters, and in most instances he is
The settled practice in this state, when the party tenders his bill of exceptions within the time fixed by statute or order, and the same be not at once authenticated, is for the judge to mark thereon the fact and date of such tender; and, even though the bill be not actually signed or sealed until subsequent to the expiration of the period fixed, this tender and indorsement is deemed sufficient to protect his rights. The reason for this ruling is that, when the party has prepared his bill and tendered it to the judge within the time allotted, he has performed his duty, and the failure of the judge to sign and seal within such time would arise from no fault on his part.
But when the presiding judge is absent from the state the tender to him cannot conveniently be made. Yet the party, being in no way responsible for this absence of the judicial officer, should not be prejudiced thereby. If, in such case, the bill be deposited within the time fixed with the clerk of the court wherein the cause was tried, such act, together with the indorsement thereon by the clerk of the fact and date thereof, would, as we are at present advised, be held sufficient to protect whatever rights the litigant would otherwise have in the premises. People v. Lee, supra.
In the case at bar the bill was neither tendered to the judge nor deposited with the clerk within the allotted period, and therefore is not properly a part of the record. The motion to strike out is accordingly sustained.
Motion sustained.
Mr. Justice Elliott, having presided below, did not participate in this decision.
