White v. Springfield Fire & Marine Insurance

GOODING, C. J.

The record in this case shows that the judgment was rendered on the tenth day of December, 1888; that the statement of facts and motion for a new trial were filed on the thirty-first day of January, 1889; that the statement of facts was agreed upon by counsel, and approved by the court, on the thirtieth day of January, 1889. The motion for a new trial is in the bill of exceptions, and nowhere else appears on the record. The statute expressly provides that a motion for a new trial shall be made within two days after rendition of judgment. Par. 836, Rev. Stats. 1887. The judgment having been rendered on the tenth day of December, and the motion for a new trial filed on the thirty-first day of January, it comes after the time fixed by the statute. The record does not disclose any reason why this motion was not filed in the statutory time. We must assume, therefore, that there was no good reason, and that the filing of the motion thereafter was not authorized by the statute. We cannot, there *354 fore, consider the motion for a new trial, unless the fact that it is set out in the bill of exceptions places it before this court. The record shows by the clerk’s entry that the motion for a new trial was overruled February 4,1890, and notice of appeal filed on that day. The record contains this entry: “Comes now the defendant, by H. N. Alexander, its attorney, and on motion leave is granted to file bill of exceptions mine pro tunc as of February 6, 1890.” And this further entry, on same day: “And thereafter, on the nineteenth day of February, 1890, nunc pro tunc February 6, 1890, the defendant filed its bill of exceptions in words as follows, to wit.” Then follows the bill of exceptions. The motion for a new trial is set out in this bill of exceptions. That is the bill of exceptions before this court for its consideration. It will be remembered that the motion for a new trial was overruled February 4, 1890. If the nunc pro tunc order made on the 19th can be recognized as a proper order by this court, then the bill of exceptions was filed in the proper time, that is, within ten days after the conclusion of the trial. The motion for a new trial having been denied on the 4th of February, and that being taken as the time of the conclusion of the trial, there is nothing before this court to show that the bill of exceptions was presented to the court or judge within the ten days fixed by the statute. Rev. Stats., par. 828. The record does show that on the nineteenth day of February, 1890, on motion of the defendant below, the court did authorize the entry of the mine pro tunc order. There is no cause shown why this bill was not presented to the judge within the ten days; nothing to show that it was the fault of the judge, and not the fault of the defendant (appellant) that said bill was not, at least, presented within the statutory ten days. In the absence of some such showing, we think it is clear that the trial court' had no authority to extend the time fixed by the statute, and that, the nunc pro tunc order being made without anything in the record to warrant it, it cannot be recognized by this court. We therefore conclude that the bill of exceptions is no part of the record, and that the motion for a new trial is not saved thereby. But, if it could be held to be in the record by virtue of the bill of exceptions, the motion itself was not filed till fifty-one days after the judgment was rendered, and *355 therefore cannot he considered by us. This leaves the case to rest in this court on the complaint and judgment. We think the complaint states a cause of action that warrants the judgment, and therefore the judgment below should be affirmed. It is so ordered.

Sloan, J., and Wells, J., concur.