69 Ind. 290 | Ind. | 1879
Complaint by the appellee against the appellant, founded upon alleged frauds in the exchange of lands. The proceedings resulted in a judgment against the appellant, from which he appeals.
As no question is presented by the record except such-as must have been reserved by a bill of exceptions, we are met in limine with an important question of practice, namely, whether the bill of exceptions is properly in the record or not. The judgment ivas rendered on the 29th day of March, 1876, at which time the court ordered “ that the defendant have ninety days to file a bill of exceptions herein.” This time would expireonthe 27th day of June, 1876.
The hill of exceptions was filed on the 24th day of October, 1876. Upon the face of the transcript, as it comes to this court, the bill was filed too late and could not he considered a part of the record. But, upon a certiorari granted by this court, the appellant applied to the court below at its December term, 1878, on motion, to enter certain proceedings nunc pro tunc, making the bill of exceptions a part of the record. Upon the trial of the-motion the court found the following facts : “ That the above entitled cause was tried at the March term, 1876, of said court; that an appeal, after judgment over a motion-for a new trial, was prayed on the 29th day of March, 1879, and that ninety days from date were given the defendant within which to prepare and file his bill of excep
Upon these facts the court ordered the bill of exceptions to be made a part of the record in the case.
According to the common law, exceptions had to be taken, and the bill of exceptions sealed, during the term at which the trial was had ; and by the statute of Westm. 2, 13 Edward I., c. 31, the judge was compelled to seal the bill at the same time. 3 Bl. Com. 372.
This would be the rule yet in this State, except for our statute, which enacts that “ The party objecting to the decision must except at the time the decision is made; but time may be given to reduce the exception to writing, but not beyond the term, unless by special leave of the court.” 2 R. S. 1876, p. 176, see. 343. It is plain, by this section, that the court must give the leave during the term at which the trial was had ; and, after the leave is once granted at that term, there is no power to extend the time after the term has passed. Nor do we see how the action of the court at its December term, 1878, can be sustained as a nunc pro time entry based upon the action of Judge Stan-field at the October term, 1876. No written notice or paper of any kind was then filed, no entry upon the judge’s docket made, no minute of any kind seems to have existed upon which to base a nunc pro tunc entry. A court may record a fact nunc pro tunc; that is, if the fact existed then, it may record it now; but it can not record a fact now which did not exist then; and there must be some record, note, entry or minute of some kind, on which to base it, connecting it with the caso. A court can not do an
These authorities show the discussions of the question under the code until it became settled as above decided, and, according to them, we must hold that filing the bill of exceptions in this case by the clerk on the 27th day of June, 1876, before the judge had signed it, signing it by Judge Stanfield on the 24th day of October, 1876, and the action of the court at the December term, 1878, either as a nunc pro tunc entry, or an original proceeding, are Avithout authority of law, and are, therefore, null and void.
Having thus arrived at the conclusion that the bill of exceptions is not properly in the record, and can not form a part of it, no other question remains for our decision.
The judgment is affirmed, at the costs of the appellant.
Petition for a rehearing overruled.