In this case the bill of exceptions against which a motion to strike has been directed, appears in the transcript properly authorized by the signature and certificate of Judge W. W. Trammell, the trial judge. No objection appears to have been made to the act of the trial judge in signing the bill of exceptions because it was out of time when it was presented for settlement and authentication. Apparently when the bill of exceptions in question was signed and settled, every one connected with the case took it for granted that it had been presented in time and was being signed within time. Had any objection to signing been made to the Circuit Judge before he signed it, the trial Judge would then have been required to determine the propriety of the objection, and would have been in duty bound to have refused to sign the bill presented to him had the objection been well taken to the effect that the bill of exceptions was not tendered within the time limit prescribed by law. But as has been stated, no such objection appears to have been urged in the lower court, so for the first time this Court is asked to consider such objection by means of a motion made in the appellate court to strike the bill of exceptions as being invalid because not signed at the term the trial was had and verdict rendered as required by Rule 97 of the practice.
A majority of the Court are of the opinion that the motion to strike the bill of exceptions was properly denied in the first instance and that no rehearing of the Court's action in that particular should be granted. See Greely vs. Percival,21 Fla. 428; Rehfield vs. Moore, 76 Fla. 378, 80 Sou. Rep. 52; Worrell vs. Ford, 90 Fla. 571, 107 Sou. Rep. 193.
But assuming, for the sake of argument, that the parties to this writ of error have so entangled themselves *Page 266 by technical misprisions that they cannot release themselves from the consequences of their alleged failure to observe a pure technicality with respect to the time allowed for the preparation, presentment and signing of the bill of exceptions, the fact remains that the bill of exceptions is now in the transcript of the record on file in this Court; that it has in fact been verified and signed as correct by the Circuit Judge; and that he has so authenticated it without objection in the belief that it was properly presented and signed by him during the term at which the judgment was rendered instead of during the term at which the verdict was returned.
Section 4624 C. G. L., which is Section 1 of Chapter 12322, Acts of 1927, provides in part as follows:
". . . in every case where it shall appear to the Supreme Court that any bill of exceptions in any cause has actually been made up and duly authenticated in accordance with one of the several modes of authentication provided by law, and is actually incorporated in the transcript of the record, said Supreme Court shall have authority to recognize and consider such bill of exceptions in the furtherance of justice, notwithstanding it may appear that such bill of exceptions was not tendered or filed in the lower court within the time allowed by law or order of the Court," etc.
A majority of the Court are of the opinion that this statute of 1927 authorizes this Court to consider and allow to stand a bill of exceptions, such as the one involved in the present case, when it appears to have been actually made up and duly authenticated in accordance with one of the modes of authentication provided by law, and also appears actually incorporated in the transcript of the record, notwithstanding it may appear that such bill of exceptions was not tendered or filed in the lower court within the time allowed by law or order of the court fixing the time for presenting and signing it. *Page 267
The purpose of the statute was to meet the precise situation we have had presented to us in this case. Here the bill of exceptions has been duly authenticated by the trial judge in accordance with one of the several modes of authentication provided by law. In this case also no objection whatsoever was made to such authentication prior to the time a transcript of the record with such bill of exceptions actually incorporated therein was filed in this Court. Therefore, whatever may be the rule as to the proper time for signing and settling a bill of exceptions when a trial is had at one term of court and the judgment not entered until a succeeding term, the fact remains that under the statute of 1927 above referred to, this Court is given authority to recognize and consider such bill of exceptions in the furtherance of justice, notwithstanding that it may appear that such bill of exceptions was not tendered or filed in the lower court within the time allowed by law or court order.
Had the trial judge refused to sign the bill of exceptions as being presented out of time, the statute gives us no power to consider it. Only bills of exception which are actually authenticated and which appear in the transcript of the record are within the purview of the statute. But when the trial judge has actually "authenticated" a bill of exceptions and such bill of exceptions is properly made to appear in the transcript, the statute does expressly give us power to allow the bill to stand, if to do so is "in furtherance of justice."
We hold that when a bill of exceptions is not objected to in the trial court as being presented for settlement and authentication out of time, and such bill of exceptions appears to have been duly settled and signed and to have been actually incorporated in the transcript of the record brought to this Court, that the statute of 1927, Section 4624 C. G. L., requires us "in furtherance *Page 268 of justice" to deny a motion to strike such bill of exceptions, raising the objection for the first time in this Court that the bill of exceptions was presented, settled and signed out of time and is therefore invalid.
The petition for rehearing should be denied and it is so ordered.
BUFORD, C.J., AND WHITFIELD, TERRELL AND DAVIS, J.J., concur.
ELLIS AND BROWN, J.J., dissent.