In re FEDERAL LIFE INS. CO., 248 F. 908

EVAN A. EVANS, Circuit Judge (after stating the facts as above). Was the bill of exceptions presented to the court on June 30th? IE so, was the defendant guilty of neglect after that date in failing to get its bill settled before November Sth? The answers to tírese two questions dispose of the petition before us. That there are authorities holding such transaction as occurred in the judge’s chambers on June 30th was not a presentation of the bill of exceptions must be conceded. They are not, however, persuasive, and seem to emphasize form rather than substance.

The settlement of a bill of exceptions ordinarily involves much informality. Wherever a dispute arises, the court and opposing attorneys generally indulge in informal discussion, in order that all may accurately recall the occurrences on the trial. Usually no stenographer attends such a hearing, and no record of the proceedings is preserved. None is required. In this case it is inconceivable that plaintiff’s counsel could have failed to understand the purpose for which he was called to the judge’s chambers on June 30th.

There was no dispute between the parties as to the allowance of the writ of error, nor of the amount of bond, nor the responsibility of the_ surety. Plaintiff’s counsel called on the defendant’s counsel on the 29th to submit the proposed bill of exceptions, and on June 30th to secure it for the sole and only purpose of having it settled. No objection to the proposed bill as- presented.was made, other than the'one indicated.

The discussion between the attorneys and the observation of the court as to the necessity of supplying a photographic copy in place of the typewritten copy of the insurance policy is explainable upon no other theory than that the attorneys were discussing the settlement of the bill of exceptions. The observation of the court, though informal, was in substance a ruling upon the sufficiency of the bill- of exceptions that contained the typewritten copy. Such a ruling, made in reference to the settlement of a bill under such circumstances, presupposes a presentation by the moving party.

We do not think it at all necessary that the paper be formally and physically presented to the court, nor a formal written motion made asking the court to sign and settle the same. Where counsel on both -sides understand what the bill of exceptions contains, and there is a single objection made, no dispute between counsel as to the facts occurring, and the court is advised as to the claims of opposing counsel and rules that a photographic copy of an exhibit be supplied in place of a typewritten copy, we conclude that there has been a presentation. Morehead v. Adams, 18 Neb. 569, 26 N. W. 242.

After June 30th we do not believe the defendant was guilty of any' want of diligence. The summer recess occurred shortly after this presentation, and it appears that attorneys as well as the judge took a vacation. True, there was ample time after the judge returned, and before November 5th, in which the bill might have been again present-ed; but the record shows several attempts to present the proposed bill, with the photographic copy of the policy inserted, to plaintiff’s attorneys.

When the objection to the appearance of exceptions to rulings on evidence was made (October 18th), a new question arose, which required correspondence with -the attorney at St. Louis. Sucli delay as occurred after October 18th was occasioned by this objection. We conclude defendant was not guilty of neglect.

The bill having been presented during the term, and no subsequent unjustifiable delay on the part of the moving party appearing, and there being no objection to the settlement of the bill of exceptions, save that it was not timely presented, petitioner is entitled to the writ directing the signing of a bill of exceptions. Chateaugay Iron Co., Petitioner, 128 U. S. 544, 9 Sup. Ct. 150, 32 L. Ed. 508; Hollon Parker, Petitioner, 131 U. S. 221, 9 Sup. Ct. 708, 33 L. Ed. 123.

We do not anticipate that there will be any occasion for the actual issue of a writ of peremptory mandamus; but, should it become necessary to do so in order to secure the rights of the petitioner, his counsel may move for the writ at any time. The present order will be: Petitioner entitled to writ of mandamus to the District Judge to sign the bill of exceptions tendered by petitioner, and as of the 30th clay of June, A. D. 1917.