Mogan v. Thompson , 13 Or. 230 ( 1886 )

By the Court.

Upon the rendition of judgment in the case the court below made an order extending the time for twenty days within which to file a bill of exceptions. Before the end of the twenty days the court adjourned for the term. About the time of the expiration of the twenty days, but whether before or after there is some dispute, the judge out of court made an order further extending the time to file such bill of exceptions; but the bill of exceptions which comes to this court was nd't prepared and filed till this extension expired. Upon this state of facts the respondent moved to expunge the bill of exceptions, as not constituting a part of the record.

In Ah Lep v. Gong Choy, ante, p. 205, recently decided in this court, it was held that where a bill of exceptions was tendered for signing within the term, or such further timo as the judge in term-time might allow, but through pressure of official duties, or other cause not the fault of the party appealing, was not signed within the time prescribed, he might afterwards sign it, and it would thereby become a part of the record. But in this case the bill of exceptions was not tendered till the expiration of the prescribed time, even upon the most favorable view. It was urged, upon the argument, that the judge of the trial court had no authority out of term-time to - make an order extending the time for filing a bill of exceptions, and that when the twenty days granted by the first order expired, that was the end of his authority in the premises. Whether such is the rule it is not necessary now to decide. But when, as now, no bill of exceptions is tendered till after the close of the term, and the expiration of any extension of the time for the filing of the' same either in or out of term-time, we think the power of the court or judge over the matter is gone— that as to such case he is functus officio.

The motion must be allowed; and it is so-ordered.