Leighton & Brown v. Stuart ( 1878 )

Maxwell, Ch. J.

The attorneys for the defendant file a motion to dismiss the case out of this court. First, Because there is no sufficient motion for a new trial. Second, Because the bill of exceptions was not settled and signed within the time required by the statute.

In answer to the first objection it is sufficient to say that the sufficiency of the assignments of error in a motion for a new trial will not be considered on a motion to dismiss.

As to the secbnd ground of objection, it appears from the bill of exceptions that it was settled and signed by the judge on the 14th day of May, 1878, the judgment having been rendered on the 13th day of March of that year. The statute provides that “ the party excepting must reduce his exceptions to writing within fifteen days, or in such time as the court may direct, not exceeding forty days from the rising of the court, and submit the same to the adverse party or his attorney of record, for examination and amendment if desired. Such draft must contain all the exceptions taken upon which the party relies. "Within ten days after such submission the adverse party may propose amendments thereto, and shall return said bill with his proposed aniendments to the other party or his attorney of record. The bill and proposed amendments must, within ten days thereafter, be presented by, the party seeking the settlement of the bill to the judge who heard and tried the case, upon five days notice to the adverse party or his attorney of record, at which time the judge shall settle the bill of exceptions. If no amendments are proposed, or if proposed and allowed, the proposed bill may be presented with the amendments, if any, to the judge for settlement without notice to the adverse party or his attorney of record.” Laws 1877, p. 11.

The act requires the bill of exceptions to be presented to the judge for his Signature within sixty days from the rising of the court. It is not necessary the bill should be signed within the sixty days; the judge is entitled to a reasonable time to examine the bill before signing the same. In this case it does not appear at what time the bill of exceptions was presented to the judge for his signature, and in the absence of such showing it will be presumed that it was presented within the proper time. The motion to - dismiss is therefore overruled, and the cause set down for argument. •

Motion overruled.