Moran v. Wagner

Mr. Chief Justice Shepard

delivered the opinion of the Court.

The appellee, Emil W. Wagner, has moved to dismiss this appeal because the bill of exceptions was not presented to tbe trial justice for settling until more than thirty-eight days after tbe entry of judgment, as provided in rule 55, supreme court of tbe District of Columbia. Tbe judgment was entered March 16, 1906, and tbe bill of exceptions was not presented until May 8, 1906. It appears, however, that on March 30, 1906, tbe court entered an order on motion of tbe appellant prolonging tbe January term for tbe period of thirty-eight days, exclusive of Sundays, for tbe purpose of settling tbe bill of exceptions, and tbe latter was presented within that time. This order extending the term was made in accordance with tbe provision of section 2 of rule 54.

Considering the two rules together, we are of opinion that the order prolonging the term for thirty-eight days, under rule 54, was equivalent to an extension of the time under special order, as provided in rule 55. the proper practice in the case where the bill of exceptions shall not have been presented for approval in time, or is manifestly insufficient in form, is to move to strike the same from the record, and affirm. As was said in Raymond v. United States, 26 App. D. C. 250, 256: “the right of appeal is not dependent upon the appearance of a regular bill of exceptions in the transcript of the record, however ineffectual it may prove on the bearing because of such omission.”

Tbe motion is denied, with costs.