Martin v. St. Louis, Iron Mountain & Southern Railway Co., 53 Ark. 250

Martin v. St. Louis, Iron Mountain & Southern Railway Co.

53 Ark. 250 | Ark. | 1890

COCKRILL, C. T.

1. Bill of exceptions-Amendment after ternu A bill of exceptions, when signed by the judge and filed by the clerk, becomes á part of the record of the cause in which it is taken, and, like any other part of the record, may at a subsequent term be amended by the court on petition and notice to the adverse party, but cannot be legally altered in any manner by the judge.

The right to amend is governed by the same rules which obtain in the amendment of any other record. In those States where the rule exists of allowing no amendment of a record, save where there is a record or memorial to amend by, the bill of exceptions cannot be amended on any other proof. Dougherty v. People, 118 Ill., 160; 4 Chitty’s Gen. Pr., p. 13. But all the authorities seem to concur in holding that the court in which the record is made has the same power to amend the bill of exceptions by a nunc pro time order to cause it to speak the truth, that it has over any other part of the record. Chitty’s Pr., supra; Heinsen v. Lamb, 117 Ill., 552-3; State v. Clark, 67 Wis., 229. The power was exercised by this court in the case of Freel v. State, 21 Ark., 226. In that case the bill of exceptions as allowed by the trial judge, showed that the offense, of which the appellant was convicted, had been committed after the indictment was found. At a subsequent term of the court in which the cause was tried, the error was corrected by causing the bill of exceptions to recite the true date of the offense, which was prior to the return of the indictment. The opinion informs us only that the error occurred in drafting the bill of exceptions.

The right to amend does not mean the power to allow a new bill of exceptions, for when the term has elapsed and the time given for its preparation passed, no bill can be allowed, and the party who relies upon his exceptions is without remedy, unless he is in position to invoke the aid of a court of chancery to grant him a new trial upon the ground of fraud, accident or mistake in the loss of his appeal. It is not the office of an amendment to create or to originate something new, but only to perfect that which is imperfectly done. Cox v. Gress, 51 Ark., 231.

This case does not call for a determination of the question whether matter which has been wholly omitted from a bill of •exceptions can under any circumstances be inserted therein by amendment at a subsequent term, without showing that the judge allowing the bill had specifically directed that it be inserted in it; for it appears here that it was the intention of the judge, in allowing the bill, to cause the charge which he had given, as well as the plaintiff’s rejected prayers for a charge, to be made a part of it. The reference to the charge and the rejected prayers shows that they were in writing, but the call for them is too indefinite to identify them. This, then, is a case of an ineffectual effort to carry out an expressed intent apparent upon the face of the record itself. It is the province of an amendment to make certain what the record now leaves uncertain, if that can be done by clear and satisfactory proof. It is not a question of power, as the trial •court seems to have supposed, but only a question of the sufficiency of the proof as to what charge and rejected prayers for a charge the bill calls for. If the court upon a trial of that issue is convinced that the charge and rejected prayers, which the bill of exceptions shows the judge intended should be inserted in it, can now be identified with certainty, a nunc pro tunc order should be made correcting the call for them in the bill of exceptions, in order that they may be certified to this court in response to a writ of certiorari.

t¡<f¿X^keietoñ The practice of suing out the writ of certiorari for the purpose of bringing up the skeleton bill of exceptions, which the clerk has acted in making up the record, is not to be commended except in cases where there is reason to doubt the accuracy of the certified bill. Even in that case it should be applied for without unreasonable delay; otherwise injustice might ensue to the adverse party by the loss of memorials, the death of the judge or by other means.

wr]¡ S certiorari The writ may be quashed after the return when it is made to appear that it will not serve the ends of justice. A motion has been made by the appellant in this case to quash the writ because of delay in suing it out, but the return to the certiorari shows that the bifi as certified does not conform to that which was originally filed, and the motion should be refused for that, if for no other, reason.

The court erred in refusing to hear evidence to amend the bill of exceptions, and the cause will be remanded for further proceedings.