On Motion for Rehearing.
The affidavit of the deputy • district clerk shows that the transcript was delivered to counsel for appellant fully three weeks, if not more, before October 17, 1910, the last day on which the transcript could be filed in this court, and he kept it for about a week, although it was several times demanded by the clerk who wished to complete the record. At that time the record was complete with the exception of the fourteenth bill of exceptions, the assignments of error, and the cost bill and certificate. On or about October 1st, the record was fully complete, containing what purported to be a copy of the bill of exceptions No. 14, and the clerk did not then certify to the record because the original bill of exceptions was not returned by counsel for appellant so he could compare it with the copy in the record made by appellant. The original bill of exceptions when last seen was in the possession of appellant’s counsel. The deputy clerk states that he would have certified to the record and turned it over to appellant if the purported copy of bill of exceptions No. 14 had 'been withdrawn from the record. It is stated by the trial judge that, during the hearing on the motion to substitute the lost bill of exceptions, M. W. Stanton, counsel for appellant, had admitted that the substitute was erroneous in some particulars, and the court refused to substitute the bill of exceptions. It is stated by M. W. Stanton and appellant that the original bill of exceptions was placed in the hands of an employe of 'Stanton with instructions to deliver it to the clerk; but it was not so delivered and was afterwards found in the office of the stenographer, who did not know how it got there. Neither appellant nor his counsel ever suggested to the clerk the withdrawal of the purported copy of the last bill of exceptions and requested a certification of the record without the bill of exceptions. If such request had been made, the clerk would have certified to the record and delivered it to appellant in ample time to have filed it in this court before October 17, 1910. It is stated that M. W. Stanton, of counsel for appellant, was engaged in the trial of a criminal case for some days after October 1st, before a special judge, the regular judge 'being absent until about October 15th, and appellant could not get a hearing on the motion to substitute, but the special judge states that he was not requested to hear the motion to substitute. The motion to substitute was heard and denied by the regular judge on October 20th, and such refusal on the evidence tends to indicate that appellant had not been diligent in obtaining the transcript of the record and shows that the clerk was right in refusing to certify to the substitute, being a correct copy of the lost bill of exceptions. There were other eminent counsel for appellant, but their aid was not invoked in the preparation of the cause for appeal.
It is clear that the transcript, full and complete, with the lost bill of exceptions omitted, could have been obtained in ample time to have filed it in this court before October 17, 1910, and the substitution of the bill of exceptions could have been attempted as well after as before the transcript was filed in this court, and it would have been the duty of this court to have withheld action in this case until a reasonable time was given for a hearing in the district court on the motion for substitution, and the proceedings in connection therewith certified to this court. When the original bill of exceptions was found, a certiorari could have been obtained from this court to have it, or a certified copy of it, brought to this court. The transcript was held with full knowledge of the facts stated, and that the time for filing the transcript had expired. No good cause has been shown, and this court should not permit the filing of the transcript.
The motion is overruled.