On Petition eor Rehearing.
Hadley, J.Appellant, in support of his-petition for a rehearing, very earnestly contends that we erred in holding that his bill of exceptions containing the evidence was not properly in the record. He relies upon the maxim, “Actus curia? neminem grambit ” to protect him against the loss of his bill of exceptions by reason of the absence of the trial judge from the State when he, within the time allowed, did all he could to present the bill for settlement. The pith of his argument is that a court will not be permitted to throw a litigant off his guard by granting him a time beyond the term to prepare a bill of exceptions, and then defeat the privilege by absenting himself from the State until the time has expired. We have no disposition to deny the justness and reasonableness of the maxim invoked, to wit, “an act of the court shall prejudice no one,” and will unhesitatingly give the principle force and effect in a case where it applies, and we have authority to do so. It is doubtless the law that a litigant who has been awarded time for a bill of exceptions, and who has successfully completed his bill within the time, and who has been diligent in its preparation and presentation, should be afforded an opportunity to present it, and should not be deprived of the bill by the absence of the trial judge from the State. State, ex rel., v. Dyer, 99 Ind. 426; Fechheimer v. Trounstiene, 12 Colo. 282, 20 Pac. 704; Stonesifer v. Kilburn, 94 Cal. 33, 29 Pac. 332.
*267But wliat we decided in the original opinion, and what we reaffirm here, is that the signing of exceptions under and at a date subsequent to the time allowed for the signing and filing of the- same imparts no validity to the instrument as a bill of exceptions. The statute, though remedial in character, is mandatory, and prescribes the precise terms upon which exceptions may, after the term, be authenticated and incorporated into the record.' And it is plain that we have no authority to treat any document or instrument of writing as a bill of exceptions unless upon its own face it shows affirmatively that the terms of the statute have been complied with, and, among other things, that it was presented to, or was settled and signed by, the trial judge within the time granted by the court. The doctrine rests upon the principle that the statute being the only authority for a bill of exceptions after adjournment of the court it can only be had upop the terms of the statute, and a bill signed by the presiding judge after the expiration of the time lawfully fixed is without authority or jurisdiction, and amounts to nothing more than if signed by the clerk. Rigler v. Rigler, 120 Ind. 431; Riverside Rubber Co. v. Midland Mfg. Co., 63 Ohio St. 66, 57 N. E. 958; Newman v. Becker, 54 Ohio St. 323, 46 N. E. 706; Walker v. Equitable Mortgage Co., 100 Ga. 84, 26 S. E. 75; 3 Cyc. Law & Proc. 38; Daugherty v. Western Union Tel. Co., 61 Fed. 138. After expiration of the time allowed, the judge loses jurisdiction over the subject-matter, and can not be reclothed with it by agreement of the parties. Long v. Newhouse, 57 Ohio St. 348, 366, 49 N. E. 79; Morris v. Watson, 61 Ill. App. 536. A failure of the stenographer to prepare the longhand manuscript of 'the evidence, though the party excepting has been diligent, is ineffectual as an excuse for signing or filing of a bill after time. Horbach v. City of Omaha, 49 Neb. 851, 69 N. W. 121. Pressure of official business upon the trial judge furnishes 'no reason or authority for him to *268sign a bill after the time has expired. Walker v. Equitable Mortgage Co., supra.
To take cognizance of a bill of exceptions that shows npon its face to have been created in disobedience of the statute would be to hold that we have discretionary power to dispense with the law whenever we deem it proper to do so. In such cases, therefore, the only way for an aggrieved party to get his exceptions into the record is to procure the insertion of the proper date of presentation nunc pro tunc, and thus send up on appeal a bill fair upon its face. Rigler v. Rigler, supra; Kirby v. Bowland, 69 Ind. 290; Walton v. United States, 9 Wheat. 651, 6 L. Ed. 182; Ferris v. Commercial Nat. Bank, 158 Ill. 237, 239, 41 N. E. 1118; West Chicago St. R. Co. v. Morrison, etc., Co., 160 Ill. 288, 43 N. E. 393; Ewbank’s Manual, §31.
And if a party is able to show that he has been diligent in the preparation and presentation of his bill, and in good faith and in due season had his prepared bill at the court, office, residence, or other place within the judicial circuit where the judge might reasonably be expected to be, and was prevented from presenting the same by reason of the absence of the judge from the State or judicial circuit, the act is such a presentation of the bill, if promptly presented to the court upon his return, as will authorize the latter, upon notice and motion, to insert nunc pro tunc the date when the presentation was defeated by his absence. Davis v. Patrick, 122 U. S. 138, 7 Sup. Ct. 1102, 30 L. Ed. 1090. The right, however, rests upon diligence, and upon the fact that the exceptor has done all he reasonably could do to secure the prompt approval of his exceptions. And whether he has been diligent or not must be determined by the sound judgment of the presiding judge upon the facts of the particular ease. Here appellant was allowed sixty days from March 15th in which to prepare and file *269his bills of exceptions. Ife had them ready for presentation to the judge on the fifty-ninth day.
In Daugherty v, Western Union Tel. Co., 61 Fed. 138, the answer in an application for removal was due February 13th. On that .day the defendant’s attorney, residing in an adjoining county, left home for the place where the court was held, by a passenger-train which was due to arrive at 10 o’clock a. m,, and which was only prevented by a very unusual snowstorm, with' respect to which, Baker, J., said: “The failure to start for the place where the court was sitting until the day when the answer was due was such an act of negligence as to defeat the right of removal, withoixt regard to the delay occasioned by the storm.”
Bill of exception number one, based on a motion to modify tlie judgment, occupies two written pages of the record, and number two, containing the longhand manuscript of the evidence, embraces sixty typewritten pages. Because sixty days were'granted did not excuse appellant from promptly and diligently proceeding with the preparation and presentation of his bills with as much dispatch as circumstances would reasonably allow. He could not be held blameless if he negligently postponed their preparation or presentation to the very end of the period.
It is not shown that it would require anything like sixty days for appellant’s attorney to prepare bill number one, or for the stenographer to write out the evidence. There were thirty-six days in which to accomplish the work before the judge left home. The judge was a special judge, resided in another county, and had no official or other known reason to keep him at home or in the circuit. There was no correspondence with the judge to ascertain whether he would remain at home to the end of the sixty days. Appellant might have had timely notice of the judge’s intended absence from the State, and might have had *270ample time and opportunity to prepare and present his bills before the judge went away. These and other matters involving the question of diligence were properly cognizable by the court in determining whether appellant presented a case warranting the signing of his bills, now for then.
The court, from the known facts and the evidence before it, decided that appellant was not entitled to have his bills signed nunc pro tunc, and refused so to sign them. The conclusion thus reached in the nunc pro tunc proceeding was a judicial judgment upon the evidence before the court, and is impeachable on appeal only as ordinary judgments of the court.
The record shows that what purports to be bills of exceptions were signed by the judge twenty days after the expiration of the time granted therefor, to wit, June 4, and when he had no jurisdiction of the subject-matter, and no power to impart validity to the documents as bills of exceptions. They must, therefore, be regarded as nullities, and as serving no purpose in the record.
The petition for a rehearing is overruled.