Gulf, C. & S. F. Ry. Co. v. Jackson

64 F. 79 | 8th Cir. | 1894

SANBORN, Circuit Judge.

Petitions for rehearings of these cases, on the ground that the defendants in error consented to the extension of the time for filing the bills of exceptions, have been presented and considered. During- the trial term in the court below, tbe time for filing the bills of exceptions in these cases was extended, by order of the court, to December 24, 1893. In December, 1893, and after the term had lapsed, the judge made an ex parte order extending the time for filing the bills until January 23, 1894, and these bills of exceptions were not settled or filed until January 13, 1894. On this state of facts, orders were made at this term affirming the judgments below on the ground that the judge had no power to extend the time to file these bills by an ex parte order in vacation, without the consent of the defendants in error to such extensions, in accordance with' our decision in Railway Co. v. Russell, 9 C. C. A. 108, 60 Fed. 503. It now appears that the bills of exceptions contained a statement of the substance of the ex parte orders extending the time to prepare and file them, and that some time in January, 1894, before they were settled or filed, they were presented to the counsel for defendants in error, one of whom indorsed upon each of them the following w-ords, “We agree upon the above and foregoing bill of exceptions,” and. signed this agreement. In our opinion this was a plain consent to the enlargement of the time for the settlement of these bills, and the defendants in error ought not to be permitted to revoke or evade it now, when the cases have been prepared for hearing on the merits in this court in reliance upon their waiver of all objections to the bills of exceptions. These motions for rehearings are granted, the orders striking out the bills of exceptions and affirming the judgments are set aside, and the cases reinstated for hearing on the merits.