Pollock v. Aikens

Citations

• 4 S.D. 374
• 57 N.W. 1
• 1893 S.D. LEXIS 81

Syllabus

<p>1. Under the provisions of Section 5083, Comp. Laws, a party desiring to have a bill of exceptions settled may pursue one of two methods: First,, after the draft of the bill and the amendments thereto, if any, have been prepared and duly served, the proposed bill and amendments may be presented, by the party seeking the settlement, t'o the judge who tried the case, upon five days’ notice to the adverse party; or, secondly, the party seeking the settlement may deliver the proposed bill and amendments to the clerk of the couit in which the case was pending for the judge.</p> <p>2. When a draft of a proposed bill of exceptions and the amendments, if any there be, has been filed with the clerk of the court where the action was tried, by the party desiring the settlement of the same, this shows that such party intended that such bill and amendments should be presented to the judge through the avenue of the clerk’s office. When a clerk has received and filed such papers in his office, they arfe in his custody, and are papers belonging to the case to which they relate.</p> <p>3. In the latter case it is the duty of the clerk to present the bill and amendments to the judge, if he be.within the county; if not, upon writ1 ten notice of the party, it is his duty to forward them'to the judge by some safe channel; if not so forwarded, the clerk must deliver them to the judge immediately upon his return.</p> <p>4. After a paper which has been properly received and filed by the clerk has been taken from the files of his office with his consent, by an attorney of the court, and a receipt given for the same by such attorney,' they are in contemplation of law in the possession of the clerk while absent from his office. The clerk loses no actual control of them at any time.</p> <p>5. A bill of exceptions and amendments having been delivered to the clerk for the judge, the jurisdiction to settle the same continues until it is settled or they are withdrawn by consent of parties, and