Bank of Kingfisher v. Smith , 2 Okla. 6 ( 1894 )

The opinion of the court was delivered by On the 21st day of November, 1891, when the court below overruled the motion for a new trial, the defendants were allowed thirty days in which to present and file their bill of exceptions. We have no further record evidence of this action from that time until the 24th day of May, 1982, when W. A. McCartney, attorney for the defendants, submitted to the successor of the trial judge a petition and affidavit alleging that the bill of exceptions was presented to the trial judge within the time allowed for the filing thereof, and praying that said bill of exceptions be signed and settled by such successor, that an appeal from the court below might be perfected.

The next record we find is an additional affidavit by defendants' attorney, submitted on the 16th day of January, 1893, in which the same facts are in substance set forth with a greater degree of certainty.

Upon the facts thus set forth, on the 16th day of January, 1893, Judge Burford signed and settled the bill and the appeal was thereupon taken and the record filed in this court.

It is not contended by appellants that there is any record or documentary evidence upon which to base the parol evidence submitted by them upon which this appeal is sought to be allowed. Sole reliance is placed upon the parol evidence. Is it alone sufficient to show the fact that the bill was presented to the trial judge within the time allowed, or that it was presented for signature or settlement at all?

If the trial judge had made a note or minute upon the bill that it had ever been presented, then, unquestionably, parol evidence would be competent to show that it was presented within the time allowed. Such is not the case. Record evidence is not only wanting to show that it was presented in time, but even wanting to show that it was, in fact, presented at all.

Section 4653, Statutes of 1890, provides:

"That when the record does not otherwise show the decision or grounds of objection thereto, the party objecting must, within such time as may be allowed, present to the judge a proper bill of exceptions, which, if true, he shall promptly sign and cause it to be filed in the cause; if not true, the judge shall correct, sign and cause it to be filed without delay. When so filed it shall be part of the record, and delay of the judge in signing and filing the same shall not deprive the party objecting of the benefit thereof.

"The date of presentation shall be stated in the bill of exceptions and the entry shall show the time granted, if beyond the term for presenting the same."

At common law the bill of exceptions was required to be completed, signed and filed during the term, but by statute in the states generally, and in this territory, the time may be extended by an order of the court. Where the bill is filed after the term the record entry must affirmatively show that the time beyond the term was given.

It is an invariable rule that where the bill is filed after the close of the term, it must show affirmatively on its face that it was presented within the time allowed. (See Elliott's Appellate Procedure, Section 802).

Subsequent to the decision and before the time of signing and settling the bill of exceptions the judge who tried the cause went out of office by resignation and the judge who allowed the bill duly became his successor; and, as before stated, it is a disputed matter upon the face of the record itself and undetermined by its recitals, whether or not the bill of exceptions was duly presented within the time allowed by the court. Had this matter been definitely settled by the record itself, beyond cavil, the doctrine of absolute verity might apply.

It may be stated as an established rule, that, while parol evidence is admissable to aid in determining whether an amendment to a bill of exceptions is proper, an amendment cannot be made upon parol evidence alone, and the courts are more cautious and careful in ordering amendments of bills of exception than they are ordering other parts of the record.

Treating of this general subject, Mr. Elliot, at § 213, says:

"We have concluded, upon an examination of our own, and other cases, that the true rule is, that while parol evidence is competent, it is not of itself, unaided by any other note, minute, or memorial, sufficient to authorize a nunc pro tunc order. It may be competent, and yet insufficient. It would certainly violate the rule laid down in a long line of cases to hold that parol evidence is all that is required."

See also Hamilton vs. Burch, 28 Ind., 233; Seig vs. Long, 72 Ind., 12; Kirby vs. Bowland, 69 Ind., 290.

In view of the rule thus unquestionably established in the state from which our procedure was adopted, it seems that this consideration alone is fatal to appellants, and renders unnecessary the discussion of less salient questions.

We, therefore, in consonance with these views, direct a dismissal of the appeal and affirmance of the judgment rendered below.

By the Court: It is so ordered.

All the Justices concurring.