85 Fla. 212 | Fla. | 1923
This is a motion to strike the bill of exceptions from the transcript of the record in a cause brought here by writ of error from a judgment of the Circuit Court in vacation, upon the ground that it was not signed by the Circuit Judge within the time prescribed by the rules.
The proceeding was under the provision of Section 2826, Revised General Statutes, to stay an execution on the ground of the illegality of .the judgment.
Chapter 3121 of the Acts of 1879, which was substantially the same as Section 2531, Revised General Statutes, providing that the judges of the Circuit Court are ‘ ‘ authorized and empowered to exercise in vacation any jurisdiction or power they are now authorized and empowered to exercise in term time,” was held, in Myrick v. Merritt,
In the case of McGee v. Ancrum, 33 Fla. 499, 15 South. Rep. 231, this court said: “What the judge does in vacation in cases properly brought before him, is considered, as to such cases, as done in term.”
The case under consideration was heard on July 19, 1922, at which time the court found, that the execution and judgment were both valid and legal, and that C. E. Lanier and T. H. Lander as principals with C. A. Skipper and W. C. Touchton as sureties had given bond to the plaintiff in the sum of $4094.82, and directed the clerk of the Circuit Court to ascertain the full amount of the execution, principal, interest and costs to date, and enter judgment for said sum against the principals and sureties. On the same day the clerk entered judgment in accordance with the order of the court.
On September 11, 1922, a bill of exceptions was presented to the Circuit Judge, and over the objection of counsel for defendant in error was on that day signed without an order previously made extending the time for presenting it.
In passing on the objection to signing the bill of exceptions, the court held that as the “hearing was not in the term time, but in vacation, the objection is overruled and the bill of exceptions settled.”
Under the common Irav a bill of exceptions had to be presented and signed by the judge at the time the order or ruling excepted to Avas made, and when so signed became a part of the record. In the progress of the trial of a cause, there could be any number of such bills of exceptions.
Circuit Court Rule No. 97 authorizes the making up and signing bills of exceptions after the term, where by special order further time is allowed.
The time during which a court holds a session for the purpose of hearing and deciding any matters in vacation is a term of court for such purposes, and it ends on the expiration of'the day on which the final judgment is rendered.
For the purpose of the application in this proceeding the term of court was held on the 19th day of July, 1922, and expired at the end of that day. If the bill of exceptions was not then presented to the judge, he could have made a special order allowing further time for its presentation. This was not done, but it Avas presented to and signed by him on the 11th of September, 1922.
The effect of the contention of the plaintiff in error, is that where a judgment in a common Mav proceeding is entered in vacation, there is no limit to the time Avhen a bill of exceptions may be presented and signed by the judge, without a special order extending the time beyond
The Circuit Judge not having, at the term when the judgment was entered, to-wit, on the 19th day of July, 1922, made an order extending the time for presenting the bill of exceptions, he was without authority to sign the same thereafter, and the motion to strike the bill of exceptions is granted.