Ratliff v. Meadows , 116 Va. 975 ( 1914 )

Keith, P.,

delivered the opinion of the court.

Ratliff filed his declaration in ejectment against Paris Meadows and others to recover a certain tract of land therein described. The defendants pleaded not guilty, issue was joined thereon, and a jury empaneled, who found a verdict for the defendants upon which the court entered judgment, and thereupon the following order was entered:

“This day came the parties by their attorneys, and the defendants expressing a desire to apply to the Supreme Court of Appeals for a writ of error and supersedeas to the judgment of this court, the operation of this order is suspended for a period of forty-five days, upon execution of a suspension bond conditioned as the law provides in the sum of $150.00 the defendants have by agreement forty-five days in which to present certain bills of exception to have signed, sealed and made a part of the record in this case.”

At a subsequent day the plaintiff, Ratliff, appeared by his attorney and moved the circuit court to enter tue following or a similar nunc pro tunc order in this case:

“Whereas in the above styled case, at the last terra of this court, and after the plaintiff had moved the court to set aside the verdict of. the jury, and for a new trial, and for a suspension of the judgment of the court, the following order was entered: ’ ’ (being the order which we have just copied).

“And whereas the words ‘defendants’ as used in said order were intended to mean and to be the word ‘plaintiff.’ Therefore on motion of the plaintiff said order entered at the last term of this court with the ‘defendants’ changed to 'the word ‘plaintiff’ is ordered to be entered now for then; ” “ which said motion was resisted by the counsel for the defendants, and on the hearing thereof it was conceded by Messrs. Chase and Daugherty, counsel for the defendants, that the defendants made no motion for a new trial, and expressed no desire to applv to the Supreme Court of Appeals, but that the plaintiff did all this, but counsel for the defendants denied that they made any agreement whatever as to the time of presenting and signing the hills of exceptions, but to the contrary in open court refused to make such an agreement, and then J. Glenn Ratliff, of counsel for the plaintiff, stated to the court that it was his understanding that the time was to be forty-five days. Counsel for the defendants conceded that they had not notified any of the counsel for the plaintiff that they relied upon any exceptions or objections to the bills of exception in this case by reason of said order or their' not agreeing thereto until after.the thirty days had elapsed; that they did not deem it incumbent upon them to do so, inasmuch as they had no agreement as to the extension over the thirty days allowed by statute in which bills of exception should be signed; and the plaintiff then showed by the clerk of the court that by mistake the words ‘defendants’ were used in said order where the words ‘plaintiff’ should have been used, and that the following words in said order, to-wit, ‘by agreement forty-five days in which to’ were written on the common law order book in pen and ink in the handwriting of the judge of this court.

“The court thereupon refused to enter said order for the reason that he had no memorandum to justify it, and thereupon the plaintiff excepted and tendered this his bill of exception which is now on this the 2nd day of August 1912, on motion of plaintiff, signed, sealed and made a part of the record in this case.”

In Burks’ Pleading and Practice, page 520, speaking of section 3385 of the Code, it is said: “Under this statute, if the time of signing is postponed beyond thirty days, consent to that effect must be entered of record as a part of the final order of the court, else the exception is not well taken, and the bill is no part of the record. The court cannot; on the mere motion of the exceptor, and without such consent entered of record, postpone from term to term the signing of such bills. A memorandum signed by counsel on both sides, and annexed to bills of exception filed several terms thereafter, to the effect that such bills of exception have been examined and agreed to, is not sufficient. The signing of bills of exception so as to make them a part of the record is a judicial act of purely statutory origin, and the provisions of the statute must be strictly observed. If a bill of exception is signed more than thirty days after the adjournment of the court, it can only be done by consent of the parties entered of record; and although the parties may have consented to the signing, if the record does not show such consent, the bill cannot be considered, nor can the fact that the consent was given at the time be shown (unless allowed by statute) by a nunc pro tunc order.”

Such being the law it seems to be very plain that the evidence in this case is not properly certified so as to make it a part of the record.

If the nunc pro tunc order had been properly entered by the court so as to make it appear that the plaintiff and not the defendants had asked for a suspension in order to enable him to apply to the court of appeals for a writ of error and supersedeas, it would not avail the plaintiff in error as more than thirty days elapsed after the adjournment of court before the bill of exceptions had been signed, and the consent of the parties lo an extension of the time beyond the thirty days was not entered of record.

We are further of opinion that even if that difficulty could have been obviated by a nunc pro tunc order, the court could not have considered the instructions given ox-refused, as they were not made a part of the record hj proper bill of exception.

Upon the whole case, we are of opinion that the judgment of the circuit court must be affirmed.

Affirmed.