29 F.2d 739 | 8th Cir. | 1928
The defendant in error has filed a motion to strike the bill of exceptions from the record in this case, on the grounds that it was not settled in time and is not in proper form.
The transcript returned with the writ of ertor shows that the trial of the cause occurred oh July 28, 1927, at the May term in that year; judgment was rendered and a motion for a new trial was denied on September 27,1927, during that term; the term was adjourned sine die- on October 31, 1927; and the bill of exceptions was presented to the District Judge and settled on December 21, 1927, without any order being made extending the time therefor and after the time allowed by rule IX of the District Court, which provides:
“Exceptions taken to rulings of the court shall be put in form and delivered to adversary counsel within sixty days next after they are alleged. When taken, in the course of a trial the sixty days shall begin from and after the last day of the trial. Adversary counsel shall be at liberty to.note objections to form or substance of such exceptions within ten days next after receiving the same and to ask the attention of the court thereto within the same time. If needful the court will appoint a time for hearing the exceptions.”
We find no difficulty in concluding that the purported settlement of the bill of exceptions was unauthorized and ineffectual to incorporate the trial proceedings in the record of this ease. Af ter a trial term expires, such exceptions may not be séttled, unless the time for presenting them has been extended by order or rule of court. Exporters v. Butterworth Judson Co., 258 U. S. 365, 42 S. Ct. 331, 66 L. Ed. 663; Farmers’ Union Grain Co. v. Hallet & Carey Co. (C. C. A.) 21 F.(2d) 42; Great Northern Life Ins. Co. v. Dixon (C. C. A.) 22 F.(2d) 655; .Cudahy Packing Co. v. City of Omaha (C. C. A.) 24 F.(2d) 3; Coleman v. U. S. (C. C. A.) 26 F. (2d) 870.
As no extension of time was granted to the plaintiff in error beyond the trial term by an order or rule of the court, we find it necessary to sustain the motion to strike the bill of exceptions from the record. It is so ordered. The further ground of the motion requires no consideration.
