RELIABLE INCUBATOR & BROODER CO. v. STAHL, 102 F. 590

PER CURIAM. The motion for a certiorari need not he considered. The document sought to be brought up is not mentioned in the bill of exceptions, was in no way made a part of the record, and, if contained in the transcript, could be of no more significance upon the motion to strike out the bill of exceptions than when satisfactorily proved by affidavit.

There can be no doubt that the paper was sent by counsel for the defendant in error to the clerk of the court, and it was perhaps placed on file; but the assertion that it was filed by plaintiff’s attorney on July 13th, besides being an evident mistake, is not clearly consistent with the statement in one of the affidavits “that the court then and there signed the bill of exceptions, without objection being made or exception taken.” On the entire showing, it is evident that the attorneys for the defendant in error, at the time the bill was filed, and possibly until they came to examine the printed transcript, believed (.hat there had been a regular extension of time for the signing and filing of the bill.

It is certain that on July 3d they learned of the extension ordered three days before, and not unnaturally they may have assumed that that order was made within the time of a previous extension which had been duly ordered. Their mistake in that respect, however, did not alter the fact that during the term at which the judgment was rendered no order was entered allowing time beyond the term for signing and filing the bill, and did not place the plaintiff in error in a worse position than if the specific objection to the signing of the bill had been interposed at the time of signing.

There is no proof which tends even remotely to show a purpose to waive the objection, or to consent to the signing of the bill out of proper time.

When, during the term at which a judgment is rendered, it is proposed to allow time beyond the term for the filing of a bill of exceptions, it is well that a notation of the fact be made upon the docket of the court, or by an entry upon the order book; but when, after the term, the bill is presented for signature, it should contain an explicit statement of the extension, such as to demonstrate that both the signing and the filing are within the time allowed, or, if a waiver of the time is to be asserted, a distinct statement of the fact of consent by counsel or party present at the time of signing, or, what would be still better, a written agreement indorsed upon or attached to the bill showing that, consent.

Under no ordinary circumstances, if at all, will affidavits be received to show such consent, — certainly not when the fact is disputed, as it is here. Indeed, it is not clear that: consent after the expiration of the term is available. In Waldron v. Waldron, 156 U. S. 361, 378, 15 Sup. Ct. 387, 39 L. Ed. 457, it is said, “The signing of the bill of exceptions after the expiration of the term at which the judgment was rendered was lawful, if done by consent of parties, given during that term.” It may be, however, that the cases cited do not go that far. Hunnicutt v. Peyton, 102 U. S. 333, 26 L. Ed. 113; Davis v.

Patrick, 122 U. S. 138, 7 Sup. Ct. 1102, 30 L. Ed. 1090; Bank v. Eldred, 143 U. S. 293, 12 Sup. Ct. 450, 36 L. Ed. 162. See, also, Muller v. Elders, 91 U. S. 249, 23 L. Ed. 319; Morse v. Anderson, 150 U. S. 156, 14 Sup. Ct. 43, 37 L. Ed. 1037; Ward v. Cochran, 150 U. S. 597, 14 Sup. Ct. 230, 37 L. Ed. 1195. The suggestion that, by the order giving time for the preparation and filing of the transcript of the record in this court, the circuit court retained jurisdiction of the case for the purpose of signing the bill of exceptions, is manifestly untenable. The motion to strike out is sustained.