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“case and exceptions,” is a sufficient bill of exceptions, if it has all the requisites of a bill, except the name.62
An exception must be noted when taken,68 but, in the absence of a rule or order restricting or enlarging the time, may be signed at any time during the term.64 A bill of exceptions must be signed at the term at which the judgment was rendered, not necessarily at the term at which the trial was had.65 A bill of exceptions filed subsequently to-the term at which judgment is entered will be disregarded by the court of review, 66 even though an order of the trial court has permitted it to be filed nunc pro tunc,67 unless before the time expired it was enlarged by order 68 or consent; 69 or it has been said when enlarged by consent after the expiration of the time; 70 except perhaps in districts where a special local rule or practice prevails, 71 or under extraordinary circumstances.72 It has been held that this doctrine does not apply to proceedings in bankruptcy.73 The inability of the trial judge to settle a bill of exceptions during the term, when caused by his illness, 74 or death,75 or by his absence from the district,76 or by his appointment and qualification as judge of a higher court,77 and the loss of exhibits without the fault or negligence of the plaintiff in error, when they were not found until after the expiration of the term,78 the delay of the court stenographer in furnishing a copy of the minutes which was duly ordered,79 have been held to justify the signing of the bill after the term. A misunderstanding by counsel as to the practice is not such an extraordinary circumstance.80
trict of Columbia, 195 U. S. 322, 49 L. ed. 219. A stipulation in aid of a writ of error, that the papers mentioned therein should "constitute the record” on the writ of error, to which was attached the certificate of the clerk that such papers were a true and faithful copy of the original papers and proceedings in the case as per the stipulations of counsel, was held to be a sufficient substitute for a bill of exceptions. Re Grove, C. C. A., 180 Fed. 62.
62 Herbert v. Butler, 97 Fed. 319.
68 Hunnicutt v. Peyton, 102 U. S. 333, 354, 26 L, ed. 113, 116.
It has been held that an exception to an order for judgment non obstante veredicto, is too late when not signed until a term subsequent to the entry of judgment thereupon. McCord v. Baltimore & O. R. Co., C. C. A., 187 Fed. 743.
64 Hunnicutt v. Peyton, 102 U. S., 333, 354, 26 L. ed. 113, 116; Jennings v. Phil., Balt. & Wash. Ry. Co., 218 U. S. 255, 54 L. ed. 1031; Reader v. Haggin, C. C. A., 160 Fed. 909; Dalton v. Hazelet, C. C. A., 182 Fed. 561; Wyss-Thalman v. Maryland Casualty Co. of Baltimore, C. C. A., 193 Fed. 53.
65 Walton v. U. S., 9 Wheat. 651, 6 L. ed. 182; Muller v. Ehlers, 91 U. S. 249, 23 L. ed. 319; Preble v. Bates, 40 Fed. 745; Minahan v. Grand Trunk Western Ry. Co., C. C. A., 138 Fed. 37.
66 Morse v. Anderson, 150 U. S. 156, 37 L. ed. 1037; Miller v. Morgan, C. C. A., 67 Fed. 82; U. S. v. Thibodeaux, C. C. A., 232 Fed. 91; Proctor Coal Co. v. U. S. Fidelity & G. Co., C. C. A., 236 Fed. 910.
67 Muller v. Ehlers, 91 U. S. 249, 23 L. ed. 319; Whalen v. Sheridan, 10 Fed. 661; Herbert v. Butler, 14 Blatchf. 357.
68 Harrison v. German American F. Ins. Co., C. C. A., 90 Fed. 758; So. Pac. Co. v. Hamilton, C. C. A., 54 Fed. 468, 474.
69 Davis v. Patrick, 122 U. S. 138, 30 L. ed. 1090; Chateaugay Ore & Iron Co., 128 U. S. 544, 32 L. ed. 508; Richmond & D. R. Co. v. McGee, C. C. A., 50 Fed. 906; Kellow P. L. Co. v. Chapman, C. C. A., 74 Fed. 444; U. S. v. Jones, 149 U. S. 262, 37 L. ed. 726; Ward v. Cochran, 150 U. S. 597, 37 L. ed. 1195; Minahan v. Grand Trunk Western Ry. Co., C. C. A., 138 Fed. 37, 41. An order of the court allowing “such
time as counsel should want to prepare a bill of exceptions” is sufficient to justify its signature after the term. Koewing v. Wilder, C. C. A., 126 Fed. 472. It is not void for indefiniteness, but should be construed as limited to the time allowed by law for suing out a writ of error. Koewing v. Wilder, C. C. A., 126 Fed. 472. When an order was made allowing four months within which to prepare and file, for allowance, a bill of exceptions, and the paper was filed within the time, it was held that it might be subsequently signed. Sutherland Pearce, C. C. A., 186 Fed. 783.
It has been held that an order extending the time for the preparation and filing of the transcript does not extend the time for signing and filing the bill of exceptions. Reliable L. & B. Co. v. Stahl, C. C. A., 102 Fed. 590; Chateaugay Ore & Iron Co., 128 U. S. 544, 32 L. ed. 508; Waldron v. Waldron, 156 U. S. 361, 378, 15 Sup. Ct. 383, 39 L. ed. 453. For what does not constitute consent, see Jennings v. Phil., Balt. & Wash. „Ry. Co., 218 U. S. 255, 54 L. ed. 1031.
70 Blisse v. U. S., C. C. A., 263 Fed. 961, 966; Exporters of Manufacturers' Products v. ButterworthJudson Corp., D. C. S. D. N. Y. March, 1920. Cf. E. I. DuPont de Nemours & Co. v. Smith, C. C. A., 249 Fed. 403. Contra Ulmer v. U. S., C. C. A., 266 Fed. 176. An endorsement upon the bill, “ we agree upon the above the foregoing bill
of exceptions," signed by counsel after an extension by an insufficient order, was held to be a waiver of any objections to the order. Gulf, C. & S. F. Ry. Co. v. Jackson, 64 Fed. 70.
71 Chateaugay Ore & Iron Co., 128 U. S. 544, 32 L. ed. 508; Woods v. Lindvall, 48 Fed. 73; Morse v. Anderson, 150 U. S. 156, 37 L. ed. 1037. For the practice in the First Circuit, see N. Y. & N. E. R. Co. v. Hyde, C. C. A., 56 Fed. 188. In the Southern District of New York, by Rule 5, “For the purpose of making and filing bills of exceptions and making any and all motions necessary to be made within the term at which any judgment or decree is entered, each term of this Court shall be, and hereby is, extended so as to comprise a period of three calendar months beginning on the first Tuesday of the month in which verdict is rendered, or judgment or decree entered.' After the expiration of the extended time, the court has no power to sign the bill, Glickstein v. U. S., C. C. A., 215 Fed. 90; except under extraordinary circumstances, U. S. v. Waite, 193 Fed. 258. See Russo-Chinese Bank v. Nat. Bank of Commerce, C. C. A., 187 Fed. 80.
72 Western Dredging & Imp. Co. v. Heldmaier, C. C. A., 116 Fed. 179; Roberts v. Bennett, C. C. A., 135 Fed. 748; Pittsburgh Gas & Coke Co. v. Goff-Kirby Coal Co., C. C. A., 151 Fed. 466.
73 See infra, § 614.
Where the term has been extended by consent, the court has power to grant an extension of time for the settlement of a bill of exceptions.81 Where the order of extension was duly signed, a delay of two days in its entry was held not to make it ineffective.82 Otherwise, the court has no power to sign a bill of exceptions after the trial term and all extensions thereof have expired.88 An extension granted during the vacation before the term succeeding the judgment was held to be insufficient.84 It has been held in the Sixth 85 and the Seventh 86 in the Eighth
74 Roberts v. Bennett, C. C. A., 135 Fed. 748.
75 Guardian Assur, Co. of London v. Quintana, 227 U. S. 100, 57 L. ed. where the delay was caused by doubt as to whether the Revised Statutes applied in Porto Rico.
78 Western Dredging & Imp. Co. v. Heldmaier, C. C. A., 116 Fed. 179.
77 See Sanborn v. Bay, C. C. A., 194 Fed. 37.
78 Pittsburgh Gas & Coke Co. v. Goff-Kirby Coal Co., C. C. A., 151 Fed. 466.
79 Where a court rule provided that the bill of exceptions must be signed within a specified time an extension subsequent to a default was allowed where the court stenog. rapher had been too busy to furnish a copy of the testimony on the trial which was duly ordered. U. S. y. Waite, 193 Fed. 258.
80 Susquehanna Coal Co. v. Casualty Co. of America, 247 Fed. 137.
81 Exporters of Manufacturers' Products
Butterworth-Judson Corp., 265 Fed. 907.
82 Camden Iron Works Co. Sater, C. C. A., 233 Fed. 611.
84 Missouri, K. & T. Ry. Co. v. Russell, 60 Fed. 501.
85 Kentucky Distillers & Warehouse Co. v. Lillard, C. C. A., 160 Fed. 34; Mahoning Valley Ry. Co. v. O'Hara, C. C. A., 196 Fed. 945.
86 Tullis v. L. E. & W. R. Co., C. C. A., 105 Fed. 554.
87 In the Eighth Circuit it is the practice to enter judgment immediately after the verdict; and the motion for a new trial may subsequently be made. In that Circuit bills of exceptions are allowed and filed at the term at which the motion for a new trial is determined,
and the Ninth 88 Circuit that the pendency of a motion for a new trial or to set aside the judgment extends the time to have the bill of exceptions signed and filed, and that the court when denying the motion may extend the time even at a subsequent term, and in the Ninth Circuit, that this rule does not apply to a motion to vacate the judgment. 89
The making of the court, subsequent to judgment, of supplemental findings, at the request of the defendant, was held not to extend the time after the entry of the judgment in which a bill of exceptions must be filed and approved, where the findings contained in the original judgment roll were sufficient to supply the judgment.90 Where the bill is signed subsequent to the term it should recite any extension that has been given whether by consent or order, 91 or any other excuse for the delay.92 It has been held that affidavits cannot be used to prove such a consent when disputed nor under ordinary circumstances to establish any fact justifying the extension.92a
It has been held that a statement in the bill of exceptions that the time to file the same had been extended by previous orders is insufficient, unless the orders are contained there or elsewhere in the record.93
If the time prescribed by the rules is enlarged by order, it is the safer practice to date the bill of exceptions at a day within the time originally limited, and to insert in the order a provision that the bill of exceptions be signed, sealed, and filed, nunc pro tunc.94
although subsequent to the term at which judgment is entered. Lindvall v. Woods, 44 Fed. 855; City of Harper v. Daniels, C. C. A., 211 Fed. 57, 60.
88 Camden Iron Works v. Sater, C. C. A., 221 Fed. 611.
89 Dalton v. Hazelet, C. C. A., 182 Fed. 561.
90 Dalton v. Hazelet, C. C. A., 182 Fed. 561.
91 Reliable Incubator & Brooder Co. v. Stahl, C. C. A., 102 Fed. 590; Blisse v. U. S., C. C. A., 263 Fed. 961.
92 Where a bill of exceptions, not
filed nor served within the proper time, was duly settled and certified by the court, it was presumed, upon appeal, that the court had relaxed the rule for some good reason, and a motion to strike out the bill was denied. City of Seattle v. Board of Home Missions of Methodist Protestant Church, C. C. A., 138 Fed. 307. Contra, Sena v. U. S., C. C. A., 195 Fed. 244.
92a Reliable Incubator and Brooder Co. v. Stahl, C. C. A., 102 Fed. 590.
93 Oxford & Coast Line R. Co. v. Union Bank, C. C. A., 153 Fed. 723.
94 Hunnicutt v. Peyton, 102 U. S.
A bill of exceptions if otherwise in time may be signed after a writ of error has been sued out, or an appeal allowed and citation issued, 96 or a supersedeas bond filed and approved ; 97 but not, it has been held, after the writ of error has been filed in the court of review.98
Even after a wřit of error, a bill of exceptions duly allowed may be amended by the trial court at the same term; not by the court of review.100 A new exception cannot be added by amendment after the time to file a bill has expired: 101 and the bill cannot be otherwise amended at a subsequent term to supply an omission due to the neglect or oversight of the plaintiff in error. 102
The rules of the District Courts usually regulate the manner of settling bills of exceptions. When they are silent, the old English practice is followed.103 It is customary for the plaintiff in error to serve a copy upon his opponent's attorney with a notice of the time and place when the original will be presented for settlement and signature. Sufficient time for the preparation of amendments should be allowed in the notice. It is the better practice to number each line of the pages of the bill; to annex to each proposed amendment a reference to the page and line to which it applies and for the amendments to be served a sufficient time before the settlement to give the plaintiff in error an opportunity to save the court labor by marking upon the copy submitted those which he allows, and for the plaintiff in error to furnish the court with a copy of the stenographer's
333, 357, 26 L. ed. 113, 117; Walton v. U. S., 9 Wheat. 651, 6 L. ed. 182.
95 Hunnicutt v. Peyton, 102 U. S. 333, 357, 26 L. ed. 113, 117; Davis v. Patrick, 122 U. S. 138, 30 ed. 1090.
96 Cook v. Klonos, C. C. A., 164 Fed. 529.
98 Ulmer v. U. S., C. C. A., 266 Fed. 176.
99 Whiting v. Equitable L. A. Soc., 60 Fed. 197. 100 Stimpson v.
Co., 3 How. 553, 11 L. ed. 722; Case v. Hall, C. C. A., 94 Fed. 300.
101 Sutherland v. Round, C. C. A., 57 Fed. 467.
102 Adams v. Shirk, C. C. A., 121 Fed. 823; Franklin County v. Furry, C. C. A., 144 Fed. 663; Ulmer v. U. S., C. C. A., 266 Fed. 176. See Bidwell v. Amsinck, C. C. A., 166 Fed. 752.
103 Chateaugay Ore & Iron Co., 128 U. S. 544, 555, 32 L. ed. 508, 512; Pomeroy's Lessee State Bank of Indiana, 1 Wall. 592, 598, 17 L. ed. 638, 640.