
    Cato v. Chrystal Ice Co.
    [67 South. 155.]
    1. Bill of Exceptions. Time for signing Toy judge. Failure of stenographer. Appeal and error. Presumption.
    
    Under paragraph “D” of chapter III, Laws 1910, providing that if the official stenographer fails to file the transcript in the time limited by law, , appellant • shall have forty days thereafter to prepare and present a bill of exceptions, as if there had been no stenographer, and the judge shall sign it in the time in which the stenographer had for filing the transcript. Since signing in such time would be a physicial impossibility, the only limit for signing is that prescribed by section 796, Code 1906, where there is no stenographer that is “Promptly.”
    
      2. Appeal and Error. Presumption. Time of presenting hill of exceptions.
    
    When the record discloses that a hill of exceptions was filed with, the circuit clerk before it was approved by the judge, but does not disclose when it was presented to the judge, the presumption is that it was presented to him within the time allowed by law.
    Appeal from the circuit court of Lincoln county.
    
      Hon. D. M. Miller, Judge.
    Suit by A. C. Cato against tbe Cbrystal Ice Company. Motion to strike bill of exceptions from tbe record.
    Tbe facts are fully stated in the opinion of tbe court.
    J. II. Sumrall, for tbe motion.
    
      H.. V. Wall and J. W. McNair, opposed.
   Smith, C. J.,

delivered tbe opinion of tbe court.

Tbis cause comes on to be beard on motion of /appellee “to strike from tbe record herein tbe bill of exceptions,” for tbe reason that “said bill of exceptions was not signed and approved by tbe trial judge witbin tbe time-allowed by law.”

It appears from tbe record that tbe stenographer who-took down tbe evidence in tbe court below was notified on tbe 11th day of February, 1913, that a transcript, thereof was desired. On tbe 2d day of April thereafter,, tbe judge before whom tbe cause was tried granted tbis stenographer “an extension of sixty days from April 6, 1913,......in which to transcribe and file the testimony.” Afterwards, tbe stenographer lost bis. notes, and therefore was unable to transcribe tbe same. On the 14th day of July,' 1913, counsel for appellant filed with tbe clerk of tbe circuit court a bill of exceptions prepared “as if there bad not been a stenographer” in tbe case. Tbis bill of exceptions was approved and signed by tbe trial judge on tbe 16th day of July, 1913, forty-one days after tbe expiration of the extension of time granted the stenographer witbin which to file a transcript of tbe evidence.

Paragraph “d” of chapter ill, Laws of 1910 (page 95, L. 1910'), provides that:

“In case of the death of the stenographer before filing a copy of his notes of the evidence and proceedings in any case, or of his failure to file the same within sixty days after notice served upon him by appellant, or within any extended time, the party taking the appeal may, within forty days after the forty, sixty, ninety, or other extended time, prepare and present to the judge a bill of exceptions in the case as if there had not been a stenographer therein, and the judge shall examine, correct if necessary and sign the same within the time prescribed, sixty or ninety days after the end of the term or within the extended time aforesaid.”

It seems clear from this statute that an appellant has forty days within which to “prepare and present to the judge a bill of exceptions in the case, as if there had not been a stenographer therein,” after the expiration of the time within which the stenographer, either by operation of law or by virtue of an order of extension, must file his transcript; that is to say, forty days after the expiration of this time, within which to prepare and present to the judge a bill of exceptions prepared in accordance with section 796 of the Code. The legislature seems also to have intended by this statute to limit the time within which the trial judge could approve and sign such a bill of exceptions; but the language in which this intention is couched renders it impossible for it to be put into effect, for the requirement is that he examine and sign it “within the time prescribed, sixty or ninety days after the end of the term, or within the extended.time aforesaid,” the clear meaning of which is that he must approve and sign it within the time allowed the stenographer to file the transcript of his original notes, and until this time has expired, and the stenographer has failed to file such a transcript, a bill of exceptions of the character here iu question cannot be tendered. This being true, it is-, physically impossible for this provision of the statute .to be complied with; consequently, the only limitation upon the power of the judge to approve and sigm such a bill of exceptions, if any such limitation in fact there be, is that prescribed in section 796 of the Code, which is, not that he must do so within any definitely prescribed time, as was pointed out in Allen v. Levy, 59 Miss. 613, but that he must do so “promptly.”

This record discloses that this bill. of exceptions was. filed with the circuit clerk before it was approved by the trial judge, but it does not disclose when it was presented to the judge. Since he approved and signed it, however, in the absence of evidence to the contrary, we must presume that it was presented to him within the time allowed by law; in other words, we must presume that he discharged his duty in the matter, and therefore did not approve and sign a bill of exceptions tendered to him after the expiration of the time provided by law for so doing.

Overruled..  