Lewis v. Meginniss

25 Fla. 589 | Fla. | 1889

Raney, C. J.:

Appellee moves to strike the bill of ex - ceptions from the transcript of the record, because it shows upon its face that it was tendered to and signed by the Circuit Judge after the term at which the judgment was rendered, and after the time allowed by the order for making up and tendering the same. An order made by the Circuit Judge April 25, 1889, refusing a motion for a new trial, concludes thus: “ To the overruling of which motion defendant, by his attorney, excepts, which exception is noted ; and defendant allowed thirty days in which to make up his bill of exceptions and perfect his appeal.”

The language of the Circuit Court Rule 97, in so far as a pplicable to this controversy, is as follows: “ The bill of exceptions shall be made np and signed during the term of the court, unless by special order further time is allowed.” “ Eurther time ” means time beyond the expiration of the term, for without an order the bill of exceptions can, under the well understood practice, be settled at any time during the term. Marks vs. Boone, 24 Fla., 177; S. C., 4 So. Rep., 532; Greeley vs. Percival, 21 Fla., 429. Where there is nothing upon the face of the order, or in the record, showing a contrary intent as to the commencement of the time allowed, the order must be construed as fixing it at the expiration of the term of the court. A different construction would be in conflict with the purpose of the rule to secure an additional privilege to an appellant. Viewing this order in connection with the rule, its meaning and effect are to give the appellant thirty days which he would not have-" had without it, for settling his bill of exceptions, or, in other words, thirty days after the expiration of the term, and as it is not contended that this bill of exceptions was not tendered to the Judge, or even that it was not settled and signed by him, within thirty days after the adjournment of the Circuit Court, the motion must be denied.

It may perhaps be well to remark that the practice of incorporating into orders of this kind language which implies the grant of additional time for taking or perfecting an appeal may lead to injurious consequences. The statutes fix the time within which an appeal must be taken, and it is not within the power of the court to extend this time. Should more than thirty days from the adjournment of a term be allowed for settling a bill of exceptions, this would not extend, nor is it in the power of the court to extend, the limitation prescribed by the statute for taking appeals, viz : during the session of the court at which the judgment has been rendered or within thirty days thereafter. Thompson’s Digest, sections !, 2 and 3, p. 446; acts of 1877, p. 52, chapter 3008; McClellan’s Digest, section 2, p. 840; Barrs vs. Creary, 28 Fla., 61; S. C., 1 So. Rep., 335.

The motion is denied.