McNeal's Admr. v. Norfolk & Western Railway Co.

185 Ky. 197 | Ky. Ct. App. | 1919

Opinion of the Court by

William Rogers Clay, Commissioner

Affirming.

John McNeal, as administrator of David Mason Me-Neal, brought this suit against the Norfolk & Western Railway Company to recover damages for his death. At the conclusion of the evidence the court directed a verdict in favor of the defendant. Plaintiff appeals.

The first question presented is whether the alleged bill of exceptions may be considered. The case was tried in the Boyd circuit court at its March term, 1918, which began on the second Monday in March and continued for twenty-four juridical days. The next regular term of the court began on the fourth Monday in April and continued for eighteen juridical days. The motion for a new trial was overruled on March 12th, and on plaintiff’s motion he was given until the 13th day of the next April term, which was May 6th, to tender and file his bill of exceptions. Plaintiff did not tender his bill within the time fixed by the order of court, but tendered it during the succeeding June term, at which time the court declined to approve and sign the bill, on the ground that it was tendered too late.

’Section 334, Civil Code, is as follows:

“The party objecting must except when the.decision is made; and time may be given to prepare a bill of exceptions, but not beyond a day in the succeeding term, to be fixed by the court.

“If the judge of said court, for any cause, does not preside at the said term of the court, or no court is held, then the party offering the bill of exceptions shall have until the next term of the court to perfect and prepare the bill of exceptions.”

It is not contended that the regular judge who tried this case did not preside at the April term, or that no court was held during that term, but it is insisted that because that term had been set apart for the trial of eriminal cases by order of court, plaintiff was not required to comply with the order requiring the bill to be filed on the thirteenth day of that term. The statute fixing the terms of the Boyd circuit court does not provide that only criminal cases shall be tried at the April term. It is the next succeeding term within the meaning of section 334, supra, of the Civil Code, requiring the court to limit the time for filing the bill of exceptions to a day in the succeeding term, and this provision is mandatory. Dalton v. Dalton, 146 Ky. 18, 141 S. W. 371. That being true, we cannot hold that plaintiff was excused from complying with the .order requiring the bill to be tendered on or before the thirteenth day of the April term, by the mere fact that the term was devoted to the consideration of criminal business. Since the bill was not tendered within the time fixed by the order, it follows that the judge properly refused to sign and approve it.

But it is insisted that defendant waived its right to strike the bill because its motion to strike was not filed until after the ease was submitted. As a matter of fact, however, the bill was not signed by the judge, and what purports to be a hill of exceptions is no bill at all and cannot be considered. Louisville Bridge Co. v. Neafus, 110 Ky. 571, 62 S. W. 2. There being no bill in the record, no motion to strike was necessary. All that was necessary was to bring to the attention of the court the fact; that the alleged bill was not signed and approved.

In the absence of a bill of exceptions, the only question to be considered is whether the pleadings support the judgment, and of this there can be no doubt. Tyler v. Woerner, 158 Ky. 710, 166 S. W. 178; Bobbitt v. Blakemore, 153 Ky. 170, 154 S. W. 941,

Judgment affirmed.