152 P. 439 | Okla. | 1915
The petition in error in this case assigns errors of law occurring at the trial, and the case is brought here on a transcript of the record, which includes a bill of exceptions, purporting to embrace everything that occurred at the trial, including all the evidence, etc. On May 10, 1912, the motion for new trial was heard and overruled by the court, and plaintiff in error here (plaintiff below) was allowed 90 days within *212 which to make and serve a case-made. No steps were taken thereafter to do so; but on October 16, 1912, all of the proceedings at the trial were reduced to writing, including the evidence taken, the instructions of the court asked and refused, and those given, etc., and the same were presented to the trial court as a bill of exceptions, were signed by him on said date, and ordered filed as a part of the record. Thereafter a transcript of the record was certified by the clerk, and the same included, after the record proper, the aforesaid bill of exceptions, and the whole case was thus brought to this court on a transcript of the record.
In this situation, the so-called bill of exceptions is a nullity, and cannot be considered. Exceptions may be taken in writing to a decision on questions of law occurring at the trial, and they may, after presentation, approval, and signing by the judge, be filed in the case as a part of the record, and thereafter be incorporated in a transcript; and in this manner they may be brought to this court for review. But such exceptions must be taken and preserved by bill of exceptions at the time the decision is made, unless time be given to reduce the same to writing, which time, however, can in no event be extended beyond the term. If the exception is made to a decision made in vacation or at chambers, time, not to exceed ten days, may be given to reduce the same to writing. Section 5027, Rev. Laws 1910. In the case at bar, the exceptions were not taken, reduced to writing, and signed by the trial judge at the time the objections were made at the trial, nor was there any order made, allowing further time within the term to prepare, perfect, and file the same. In the case of Lampton v.Johnson,
"1 An 'exception' is an objection taken to a decision of the court or judge upon a matter of law.
"2. The party objecting to a decision must except at the time the decision is made, and time may be given to reduce the exception to writing, but not beyond the term.
"3. Where no time is asked or granted for reducing exceptions to writing at the time the decision excepted to is made, there is no authority for signing and allowing a bill of exceptions and making it a part of the record proper after the expiration of the term."
The above case is identical in its facts to this one; and under the authority of that case, no errors of law occurring at the trial, and as shown in the purported bill of exceptions, can be considered here, for the reason that the said bill of exceptions was not made within the time and in the manner provided by law, and is therefore not a part of the record and cannot be brought here in a transcript of such. And, inasmuch as no errors are pointed out as appearing on the record proper, there is nothing here for us to review.
Therefore the appeal is dismissed.
By the Court: It is so ordered. *214
