ALBERT BERRY v. THE SAN FRANCISCO AND NORTH PACIFIC RAILROAD COMPANY

[No. 4,007.] ALBERT BERRY v. THE SAN FRANCISCO AND NORTH PACIFIC RAILROAD COMPANY. Bill of Exceptions.—A bill of exceptions may be settled at any time -within thirty days after the judgment is rendered, and it then becomes a part of the record on appeal from the judgment on questions of law. The trial was by jury, and the plaintiff obtained a verdict on the 25th day of June, 1873. A judgment was entered for the plaintiff on the same day. On the fourteenth day of July, 1873, the Judge settled a bill of exceptions on questions of law, and the same was filed the next day. The defendant appealed from the judgment. No motion for a new trial was made. The respondent filed a brief on the point that the bill of exceptions was not a part of the record, and could not be' considered. Thomas & Pressley, for Appellant. McCullough & Maslvh, for Respondent. Section 670 of the Code of Civil Procedure, provides that the judgment roll shall consist of the pleadings, verdict of the jury or findings of the Court or referee, all bills of exceptions taken and filed, and other papers before enumerated, and the clerk is required “ immediately after entering the judgment,” to make up this roll. Section 649 provides for a bill of exceptions to any ruling of the Court being presented at the time the ruling is made, and signed by the Judge and filed with the clerk. This bill of exceptions, made at the time of the ruling, must be immediately after the judgment is entered, attached to the other papers named in section 670, and becomes a part of the judgment roll. There is no provision in the Code of Civil Procedure which makes the bill of exceptions provided for in section 650 a part of the roll; nor could there be without violating the provisions of section 670, which is mandatory on the clerk, and declares that the papers enumerated, when attached together, shall constitute the judgment roll. A paper filed at any time after the judgment is entered, and the judgment roll is made up by the clerk, is not and cannot become a part of the judgment roll. [MAJORITY — By the Court:] By the Court: Upon the authority of Caldwell v. Parks, ante, 640, the objections of the respondent taken to the sufficiency of the bill of exceptions herein, are overruled, and the respondent is allowed to file brief upon the merits within ten days.