
    WEDDERBURN v. WEDDERBURN.
    Appeal and Ebrok; Statement op Evidence.
    A statement of the evidence in an equity cause will be stricken from the record on appeal, when filed in the lower court more than thirty-eight days after decree entered, although within the thirty-eight days the justice of the lower court who heard the cause left ,pn his vacation and did not return within that time, where it appears that during that period there was, in accordance with the rules of that court, a justice sitting for the purpose of hearing interlocutory matters, and no application was made to him to extend the time for filing the statement until after the expiration of the time, when he made an order doing so. (Construing Common-law Rule 48 of the Supreme Court of the District of Columbia.)
    No. 2957.
    Submitted April 24, 1916.
    Decided May 8, 1916.
    Motion to strike the statement of evidence from the record on appeal.
    
      Granted.
    
    The facts are stated in the opinion.
    
      Mr. L. H. David for the motion.
    
      Mr. Edmund Burke opposed.
   Mr. Chief Justice Shepard

delivered the opinion of the Court:

This case is before us on appellee’s motion to strike out the statement of the evidence filed in the record herein.

It appears from the motion and reply thereto, that the decree in this case was entered June 8, 1915, which decree was amended by another decree dated June 15, 1915, entered on the docket in the court below June 16, 1915. The appeal bond was filed June 25, 1915.

Common-law Buie 48 of the Supreme Court of the District of Columbia, relating to submission of bills of exception, statements, etc., provides that the bill shall be submitted to the court within thirty-eight (38) days after judgment shall have been entered, unless the court shall, for cause shown, extend, the time.

It appears, therefore, that the thirty-eight days from June 16, 1915, counting Sundays and half holidays, expired July 31, 1915.

It appears that Mr. Justice McCoy, before whom the case was tried, left the District of Columbia on his vacation July 6, 1915, and did not return until the 13th day of September following.

One of the justices of the supreme court of the District of Columbia, by their rule, remained in the District to attend to the duties of all the courts during the summer vacation. The appellant made no effort to secure an extension of time by the said Justice before his departure for his vacation, but on August 25, 1915, he appeared before Mr. Justice Siddons, who was sitting in all the branches of the supreme court of the District of Columbia, and obtained an order extending the time to submit a statement of the evidence to September 15, 1915.

The appellant submitted the statement finder the aforesaid order to Mr. Justice McCoy on September 14, 1915, and the same was approved and settled by him on said date.

We are of the opinion that the motion to strike out should prevail.

It is true that before the expiration of the thirty-eight (38) days Mr. Justice McCoy had left the District on his vacation, but it is also true, and was well known, that one of the justices of the supreme court of the District of Columbia, in accordance with the rules of said court, was here in the District of Columbia, holding sessions of each and every special term of the supreme court for the transaction of business.

If the appellant had not time to procure an order of extension from Mr. Justice McCoy before his departure, it was open to him to make such an application to his successor before the expiration of the thirty-eight (38) days.

Not having done so, no extension of the time could be procured at a subsequent date.

The motion is sustained, and the statement of evidence is stricken out at the cost of appellant. Sustained.  