56 Miss. 125 | Miss. | 1878
delivered the opinion of the court.
Defendant in error moves to affirm the judgment, because there is no legal bill of exceptions in the transcript.
Plaintiff in error insists that the bill of exceptions on file is valid; but, if it be ruled otherwise, he asks leave now to file one properly authenticated.
The objection to the bill of exceptions found in the record is twofold: first, that it was signed by the attorney who presided as special judge, instead of by the circuit judge; second, that it was signed in vacation.
It was settled in the case of Saunders v. Brown (MS. op.), that sect. 536 required the bill of exceptions to be signed by the circuit judge ; hence the first ground of objection is well taken. If, however, it appeared that the bill had been seasonably signed, and was in other respects regular, we should feel constrained to allow the bill, properly signed by the regular judge, which is now presented, to be filed in lieu of the one which, under a mistaken apprehension of the statute, — entertained, perhaps, upon both sides, — was signed by the special judge. The case was tried at the August term, 1877, of the Circuit Court of Rankin County. At the termination of the trial, counsel agreed in open court, as we were advised by the affidavits filed with these motions, that a bill of exceptions might be signed in vacation. Nothing was done to carry out this agreement until late, in January, 1878, a few weeks before the meeting of the next term of the court; counsel for plaintiff below (defendant in error) declined theu to agree to the bill made out by defendants,
The bill of exceptions offered in this case comes up to none of the requirements here announced. There was no order entered upon the minutes, nor any agreement of counsel, either entered on the minutes or embodied in the bill of exceptions ; and it is quite evident, from the affidavits submitted, that neither party anticipated, when the agreement was made, any such unreasonable delay as occurred, nor is any excuse offered for the dilatory action on the part of defendants below in having the bill signed.
The motion for leave to file an amended bill is denied. The motion to affirm the judgment is sustained.