25 Iowa 21 | Iowa | 1868
Under this statute my opinion is, that where the parties, by agreement, extend the time for settling the bill of exceptions beyond the term at which the trial is had, it is not competent to settle the same by the certificate of bystanders. The entire language of the section, it seems to me, contemplates that such attestation is only to be received during the term. And the spirit of the enactment is in full accord with this construction. Any other rule would be liable to the greatest abuse. The theory and presumption is, that the judge stands indifferent between the parties, and will readily state the exact facts in the bill of exceptions. To allow an exception to come in after the adjournment — -after the matter has necessarily passed to some extent from the minds of those hearing the trial — which, if filed during the term, might satisfy the judge of its correctness and his own error — and when the opposite party is not present, and hence without immediate opportunity to impugn or contradict the same, would, in my opinion, violate the letter of the statute, as well as its purpose and meaning. And this view is fortified by the prior sections (3106 et seq.), which contemplate that an exception is to be settled at the time. So believing, I conclude, that when, by agreement, time is thus taken beyond the term, the party excepting must take his chances; and if the judge fails to sign a bill such as he wants, or signs one which omits to state the facts fully and correctly as they transpired, he cannot resort to this
Thirty days was the time agreed upon to settle the exception. There is nothing to show when the disagreement took place. At least, if defendant would claim the benefit of this statute, he should show that he made proper effort to settle the same within the time fixed. "Without this, against plaintiff’s objection, he could not have had the benefit of an exception, signed by the judge after that time, and he can stand in no better position when it is thus signed by two bystanders. It is true, that it appears that about two weeks after the adjournment the bill was sent to the judge, and for aught that is shown, the judge at once proposed the amendment, and yet nine months elapsed before an effort was made to
In our opinion, the motion should prevail, and it is accordingly so ordered.