Moore delivered the opinion.
This is a special proceeding, instituted in this court April 2, 1903, to compel the judge of the Ninth Judicial District to settle and sign a bill of exceptions. It is alleged, in substance, in the alternative writ of mandamus, that on May 6, 1902, the plaintiff, George W. Hayes,- having been convicted in the circuit court for Harney County of the crime of adultery, was sentenced to imprisonment in the penitentiary for the term of one year; that, desiring to review said judgment, he caused to be prepared a notice of appeal, which was ready for service, and employed counsel to conduct the cause in this court; that he had incurred great expense in securing a full and correct transcript of the testimony, which had been extended by the official reporter from stenographic notes taken at the trial; that he had prepared a bill of exceptions, pointing out in a succinct man
A year not having elapsed since the judgment, an appeal to the supreme court therefrom may be taken (B. & C. Comp. § 1467); but, the exceptions not having been reduced to writing during the trial, nor the time extended in which to submit the same for allowance, the question to be considered is whether, under such circumstances, the defendant can be compelled to certify and sign a bill thereof. An exception is an objection taken at the trial to a decision upon a matter of law: B. & C. Comp. § 169. The point of the exception shall be particularly stated, and may be delivered in writing to the judge, or entered in his minutes, and at the time or afterwards be corrected until made conformable to the truth: B. & C. Comp. § 170. No particular form of exception shall be required.
These decisions show that, in the absence of any statute to the contrary, a very liberal policy has been pursued by this court in construing the power of a judge of the trial court to settle and sign a bill of exceptions; the rule adopted being that the matter was within the judge’s discretion, which, when exercised, will not usually be disturbed, and that, when the time limited by the judge to prepare and present the bill of exceptions has expired, he will not be compelled by mandamus to sign the same, unless the appellant’s application for the alternative writ presents a reasonable excuse for a failure to comply with the terms imposed. No order having been made enlarging the time in which to present the bill of exceptions, the allowance thereof, after the close of the term at which the judgment was given, was a matter within the judge’s discretion; and, no reasonable excuse having been given for not securing such extension, his refusal to allow and settle the bill is not, in our opinion, such an abuse of discretion as to warrant an exercise of the extraordinary power invoked. As it is possible to perfect an appeal from the judgment complained of, which will bring up for review the judgment roll, it is not necessary at this time to consider what effect the pardon of the defendant therein may have upon such appeal. It follows that the writ must be dismissed, and it is so ordered. Writ Denied.