144 Ky. 458 | Ky. Ct. App. | 1911
Opinion of the Court by
— Affirming.
In this action by John D. Shaw against M. E. Smalling for damages for the seduction of Essie Shaw, the daughter of the appellee, there was a verdict of $500.00, and from a judgment upon that verdict Smalling appeals.
“The attorney for defendant, at the request of counsel and court, agreed to bring into court the bill offered to be tendered at the regular term, of which defendant claims that this bill is only a correction; and the attorneys for the defense are ruled' by this court to do so, and deliver the same to1 the clerk before he copies this bill of exceptions for the Court of Appeals, and when so brought into court and made a part of this bill, the court adjudges it a corrected bill, and signs same as such, to which ruling plaintiff excepts. But if they fail to do this, the court signs said bill as a new bill of exceptions except the sheet on the back, containing the clerk’s endorsement of the order filing it — Then this bill of exceptions having been tendered by defendant, which, having been examined and approved by the judge, is ordered to be filed as a part of the record of this case without being spread upon the record, to all of which plaintiff objects and excepts.”
The original bill was filed and is a part of the record.
Section 334 of the Civil’ Code of Practice provides as follows:
-“The party objecting must except when the decision • is made; and time may be given40 prepare a bill of exceptions, but not beyond a day in a succeeding term, to be fixed by the court.”
In support of the motion to strike the bill of exceptions from the record, it is contended that the- judgment having been entered and the motion for a new trial
‘‘If the bill of exceptions be approved by the judge, he shall sign it, and it shall be filed as a part of the record, but not spread at. large on the order book. If not approved, he shall correct it, or suggest the correction to be' made, and sign it. A party objecting to the judge’s correction of an exception which purports to state the evidence may, within five days after the bill is signed, file the exception as written by him, if its truth be attested by the affidavits, of two bystanders; but its truth may be controverted and maintained by other affidavits filed in the clerk’s office, not exceeding five ori, either side.” • • ■ •
It will be seen that this section also provides for a bystander’s bill of exceptions, if the judge refuse to sign ■the bill tendered to him. But a bystander’s' bill must be prepared and 'filed not later than five days after the term at which the bill has been signed; it cannot be filed at a subsequent term of the court.
■This court has several times held that when a bill of exceptions has been tendered in time, and withheld by the judge for examination, it is to be regarded as filed on the day it was tendered, and may be filed by the judge on any subsequent day, in that term, or at a later term, for the reason that when the bill' has been tendered, the party who tendered it thereby lost control of it. He had done all that the law required of him. Toner vs. Railroad Company, 109 Ky., 41; Meaux vs. Meaux, 81 Ky.,475; White v. Allen, 10 Ky.Law Rep. 1025.
Therefore, when the judge took possession of the original bill at the December term, and failed to' make some disposition of it, the appellant was helpless; he
In Vandever vs. Griffith, 2 Met., 426, this court said:
“At the next March term, we find a statement that ‘the parties came by their attorneys, and it appearing that at the trial of this cause at the last term of this court, the court allowed defendants time to prepare a statement and bill of exceptions.’
“Now, how does this appear? Was it from the memory of the judge, or a suggestion of one of the attorneys, or of one of the parties, or a statement by a bystander? It does not appear from the record. There is no trace of any such thing there.
“Are circuit courts to be allowed to act, in matters of the gravest importance to litigants and the community generally, and where there are plain rules of law written for their guidance and control, upon appearances so unreliable and uncertain as were acted upon in this case? Certainly it can not be allowed. If so, the rights of litigants in the mater of making out and filing bills of exceptions will no longer be secure.”
. We are of opinion that when the judge took possession of the bill at the December term, and failed to then sign it, and at the special January term required both the original and the corrected bill to be filed, as he did, the new bill of exceptions was a mere correction of the original bill and within the meaning of the Code, and satisfied the provisions of the Code above referred to.
Appellee’s motion to strike the bill of exceptions from the record will therefore be overrruled.
Furthermore, appellant insists that .the testimony shows that one Sam 'Creek was the father of the child. An unusual feature of the case is presented in the fact that appellee did not offer his daughter as a witness against appellant, but that the appellant produced her as a witness in his own behalf. She testified that appellant was not the father of her child; that he had never had sexual intercourse with her, and that Sam Creek was the father of her child. "While there is no direct or positive testimony sustaining appellee’s contention that appellant had been intimate with his daughter, there was ample circumstantial evidence to sustain the verdict. Essie Shaw was about 19 years old, while the appellant, M. E. Smalling, was about 26 years old. They had known each other from infancy, and lived in the same immediate neighborhood. He had begun to court her when she was about 13 years old, and .he about 20. He continued to visit her at the home of her father onoe or twice a week until about two years before the birth of the child, when her father became suspicious of him, and forbade him making further visits to his daughter. Nevertheless, appellant continued to meet her in the neighborhood; would walk home with her, leaving her at the gate. Appellee testified that appellant would hide about appellee’s home watching for Essie, and would motion her to come and meet him at a near-by spring, which she would do. About a month after the birth of her child Essie’s mother demanded to know the name of the father of the child, and also how Essie had gotten certain money that her mother had found in a closet; and the daughter having refused to give her mother this information, they quarreled, and Essie went to Padgett’s house,.where she met the appellant by agreement. Appellant shortly thereafter obtained a servant’s position for Essie in the home of his brother, W. K. Smalling, and this in spite of the fact
Furthermore, not only before, but after the birth of the child, appellant was very anxious to find out who would be charged with its paternity; and he went so far as to send his lawyer to Essie, who obtained her affidavit to the effect that appellant was not the child’s father. When bastardy proceedings were taken against Sam Creek, appellant saw to it that Essie had a conveyance to town to appear before the grand jury; and upon the trial of this case between her father and Smalling, the latter saw to it that she had a conveyance to the court houste. Upon the trial of the bastardy case against Sam Creek, appellant was summoned as a witness and not only ignored the summons, but admits that he successfully dodged the sheriff who tried to execute an attachment to compel appellant’s attendance.
It is insisted by appellee that appellant inspired the bastardy proceedings against Creek, and there is some, evidence tending to support that contention. Furthermore the record shows that appellant and Essie were sweethearts for many years, and that he exercised that control and influence over her, both before and after the birth oí her child, which follows only from affection and confidence. No other person occupied like relations with her. Her testimony with regard to her relations with Sam Creek impresses one with her evident desire to protect her lover. According to her testimony, she was intimate with Sam Creek on the third Sunday in April, 1909, on the occasion of her first or second association with him. The appellant undertook to prove that Sam Creek was the father of the child. The issue was thus squarely made and fought out before the jury; and upon -th¡e issue thus raised there was ample testimony to justify the submission of the case to the jury. Appellant’s motions for a peremptory instruction for the jury to find for him were properly overruled.
Judgment affirmed, with damages.