#### State of Nebraska, ex rel. Gustav Pritschau, v. S. H. Sornborger.

Filed November 2, 1904.

No. 13,593.

Exceptions, Bill of: Mandamus. Where an *ex parte*order extending the time for the presentation of a hill of exceptions has been found upon a hearing, to have been wrongfully and fraudulently obtained, a district judge may set the order aside, and refuse to settle and allow the bill because not presented within the statutory time. In such case he will not be compelled by mandamus to settle and allow the bill.

Original application for a writ of mandamus to compel the allowance of a bill of exceptions.

*Writ denied.*

*C. E. Holland,,*for relator.

*J. J. Thomas, contra.*

Letton, C.

This is an original action in this court for the purpose of compelling the Honorable S. H. Sornborger, lately judge of the district court for Seward county, to settle, allow and *616sign a bill of exceptions in an action pending in said court. A summary statement of tlie allegations of the petition is that, on the 16th day of February, 1903, an action was pending in the district court for Seward county, wherein Gustav Pritschau was plaintiff and Rice Brothers & Nixon and others were defendants, wherein the W. J. Perry Live Stock & Commission Company and W. E. Langworthy, two of the defendants, recovered a final judgment against the plaintiff dismissing his action; that the presiding judge, the Honorable S. H. Sornborger, granted 40 days from the rising of the court to prepare and present a bill of exceptions; that, afterwards, upon a showing of diligence, said judge made an order extending the time in which to prepare and serve the bill of exceptions to 80 days from the rising of the court; that the term of court at which the action was tried adjourned *sine die*on the 16th day of May, 1903; that the proposed bill of exceptions was, on the 6th day of July, served upon the attorney of record for said defendants, who retained the same until after the 15th day of August, 1903, and on the 27th day of August, 1903, it was found upon the desk in the office of C. E. Holland, one of the attorneys for plaintiff Pritschau, without any amendments being suggested or proposed; that said proposed bill was presented to the respondent, S. H. Sornborger, for settlement and allowance within the time required by law; that said judge took away the said proposed bill and never returned same, but that, afterwards, in December, 1903, it was found in the office of J. J. Thomas, the attorney for said defendant, and was again presented by plaintiff’s attorney to the said respondent, Sornborger, for settlement and allowance, on December 15, and that, afterwards, on the 24th day of December, respondent declined and refused to settle or allow said bill. The petition prays for a peremptory writ of madamus to compel the respondent to settle and allow the bill of exceptions. The answer of the respondent, after admitting the facts in relation to the rendition of the judgment, the allowance of the 40 days to prepare and present *617the bill, and tbe making of tbe order extending tbe time for an additional 40 days, alleges that the bill of exceptions was presented to bim in November, 1903; that it appeared that it bad been tendered to adverse counsel on July 13, 1903, and service refused because it bad not been served within tbe original 40 days allowed by the respondent; that, when tbe bill was presented to bim for allowance by tbe relator’s attorney, be observed that objection bad been made to its allowance, and that he refused to consider tbe allowance of same without notice to tbe opposing counsel; that tbe matter of allowing and settling tbe bill of exceptions came on finally to be beard on tbe 24th day of December, 1903, Avhich Avas a day of tbe regular November, 1903, term of the district court for Seward county, on tbe motion of tbe defendants to-revoke, cancel and annul tbe order granting plaintiff an additional 40 days xvithin Avhich to prepare and serve said bill, and upon other objections to its allowance, at which bearing all of tbe parties in interest Avere represented by counsel; that upon a full hearing of tbe facts tbe respondent concluded that there Avas an entire lack of diligence on tbe part of tbe relator, and a clear case of gross negligence, and respondent therefore withdrew, canceled, revoked and annulled tbe former order granting an additional 40 days Avithin which to prepare and serve tbe bill of exceptions; that no proceedings to reverse said order have been instituted.

No evidence was presented in this court, other than tbe original proposed bill of exceptions with tbe endorsements and memoranda Avritten thereupon; but it sufficiently appeared from tbe statements and admission made upon tbe hearing that tbe facts were substantially as alleged in tbe pleadings.

It appears that tbe motion to set aside tbe order granting additional time Avas made upon tbe grounds that the defendant bad no notice of the application for additional time'; that no sboAving of diligence bad been made; that the reporter had completed the bill of exceptions and *618offered to deliver it to the plaintiff long prior to the expiration of the first 40 days allowed; that the obtaining of the order of extension was a fraud upon the court, and that it was solely owing to the plaintiff’s neglect that the bill was not served Avithin the first 40 days. At the hearing upon the motion to vacate the order, both parties appeared and were represented by counsel, and evidence was taken by the court, upon consideration of which an order revoking the order of July 3 was entered. It appears, then, that the district judge found at the hearing that when he made the order extending the time he had been imposed upon, and that upon ascertaining that fact he set aside the order made and refused to settle the bill of exceptions.

This he had a perfect right to do. It Avould be strange indeed if a judge avIjo found he had hewn deceived in making an *ex parte*order extending the time to present a bill of exceptions could not deprive the offending party of any benefit from an order thus obtained, by refusing to give him the benefit of his Avrongdoing upon an application to settle and alloAV the bill. Courts and judges are not thus impotent.

The matters set fdrth in the ansAver and the facts admitted constitute a good defense, and the respondent was justified in his refusal to settle the bill of exceptions.

The writ should be refused and proceeding dismissed at relator’s costs.

By the Court:

For the reasons stated in the foregoing opinion, the writ is refused and the proceeding dismissed at relator’s costs.

Writ denied.