GEORGE LEWIS, EXECUTOR OF THE LAST WILL AND TESTAMENT OF JAMES D. WESTCOTT, DECEASED, APPELLANT,
v.
DANIEL B. MEGINNISS, JR., APPELLEE
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The Florida Supreme Court denied appellee's motion to strike the bill of exceptions from the record, holding that a Circuit Court order allowing thirty days to make up and tender the bill of exceptions after judgment meant thirty days from the expiration of the term, not from the date of the order, and the bill was timely filed within that period.
The bill of exceptions was timely filed. An order allowing additional time for settling a bill of exceptions, without expressly stating when the period commences, must be construed as allowing time beyond the expiration of the term—thus thirty days from the adjournment of the Circuit Court—and the appellant is entitled to this additional period to tender and have the bill signed.
“The bill of exceptions shall be made up and signed during the term of the court, unless by special order further time is allowed.”
Statement of the controlling Circuit Court Rule 97 governing when bills of exceptions must be settled.
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Join FLexlaw to unlock all legal intelligenceThe Circuit Judge rendered a judgment and issued an order on April 25, 1889, overruling a motion for a new trial. The order stated that the defendant …
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Raney, C. J.:
Appellee moves to strike the bill of ex - ceptions from the transcript of the record, because it shows upon its face that it was tendered to and signed by the Circuit Judge after the term at which the judgment was rendered, and after the time allowed by the order for making up and tendering the same. An order made by the Circuit Judge April 25, 1889, refusing a motion for a new trial, concludes thus: “ To the overruling of which motion defendant, by his attorney, excepts, which exception is noted ; and defendant allowed thirty days in which to make up his bill of exceptions and perfect his appeal.”
The language of the Circuit Court Rule 97, in so far as a pplicable to this controversy, is as follows: “ The bill of exceptions shall be made np and signed during the term of the court, unless by special order further time is allowed.” “ Eurther time ” means time beyond the expiration of the term, for without an order the bill of exceptions can, under the well understood practice, be settled at any time during the term. Marks vs. Boone, 24 Fla., 177; S. C., 4 So. Rep., 532; Greeley vs. Percival, 21 Fla., 429. Where there is nothing upon the face of the order, or in the record, showing a contrary intent as to the commencement of the time allowed, the order must be construed as fixing it at the expiration of the term of the court. A different construction would be in conflict with the purpose of the rule to secure an additional privilege to an appellant. Viewing this order in connection with the rule, its meaning and effect are to give the appellant thirty days which he would not have-" had without it, for settling his bill of exceptions, or, in other words, thirty days after the expiration of the term, and as it is not contended that this bill of exceptions was not tendered to the Judge, or even that it was not settled and signed by him, within thirty days after the adjournment of the Circuit Court, the motion must be denied.
It may perhaps be well to remark that the practice of incorporating into orders of this kind language which implies the grant of additional time for taking or perfecting an appeal may lead to injurious consequences. The statutes fix the time within which an appeal must be taken, and it is not within the power of the court to extend this time. Should more than thirty days from the adjournment of a term be allowed for settling a bill of exceptions, this would not extend, nor is it in the power of the court to extend, the limitation prescribed by the statute for taking appeals, viz : during the session of the court at which the judgment has been rendered or within thirty days thereafter. Thompson’s Digest, sections !, 2 and 3, p. 446; acts of 1877, p. 52, chapter 3008; McClellan’s Digest, section 2, p. 840; Barrs vs. Creary, 28 Fla., 61; S. C., 1 So. Rep., 335.
The motion is denied.
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Citator
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Hainlin v. Budge, 56 Fla. 342 (Fla. 1908)…v. Wilson, 21 Fla. 165; Greely v. Percival, 21 Fla. 428; Bush v. State, 21 Fla. 569; Willingham v. State, 21 Fla. 761, text 784; Myrick v. Merritt, 21 Fla. 799; Temple v. Fla. Land & Immigration Co., 23 Fla. 59, 1 South. Rep. 333; Lewis v. Meginiss, 25 Fla. 589, 6 South. Rep. 169; McGee v. Ancrum, 33 Fla. 499, text 506, 15 South. Rep. 231, text 233; Stephens v. Hale, 33 Fla. 618, 15 South. Rep. 251; Pickett v. Bryan, 34 Fla. 38, text 42, 15 South. Rep. 681, text 682; Jacksonville St. Railroad Co. v. Walton…
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Bossom v. Gillman, 70 Fla. 310 (Fla. 1915)…red nunc pro tunc is that the defendant “is given sixty days in which to prepare and present his bill of exceptions.” This allows sixty days after the adjournment of the term. Rule 97 of Circuit Court Rules in Common Law Actions. Lewis v. Meginniss, 25 Fla. 589, 6 South. Rep. 169. The bill of exceptions contains the following: “The said defendant did, on the 16th day of January, 1915, after the expiration of said term, by virtue of a special order herein made, propose this, his bill of exceptions to * * *…
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Alexaner Rehfield v. Moore, 76 Fla. 378 (Fla. 1918)…r the verdict rendered, then the motion to strike should be denied, because the time allowed in which to present a bill of exceptions begins to run when not otherwise specified from the end of the term at which the order is made. Lewis v. Meginniss, 25 Fla. 589, 6 South. Rep. 169. But if the order of the court upon the motion should be considered as an order made in vacation or at a special term for this case, then the motion should be granted because the bill of exceptions should have been presented withi…
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- Marks v. Boone, 24 Fla. 177 (Fla. 1888)