Estate of Scott

COOPER, C.

Appellant filed his final account as special administrator in the above-entitled estate. One Bachel, a creditor, filed written objections thereto. Upon the hearing of the nineteenth day of May, 1898, the court struck out and disallowed the item of two hundred and sixty-two dollars claimed to have been paid for rent, reduced the attorney’s fee from one

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hundred dollars to fifty dollars, and the fees of the administrator from thirty-five dollars and sixty-three cents to seventeen dollars and eighty cents, and allowed the account as to all other items. From this order the appeal is taken. There is in the record what purports to be a bill of exceptions containing the evidence relative to said items, and the statement that appellant excepted to the order so made by the court. It is claimed by respondent that the bill of exceptions cannot he considered because it was not served upon respondent, nor settled at the time of the trial, nor when the order was made, and we think the contention will have to be sustained.

The so-called bill of exceptions was not served on respondent, and he was not present in person or by counsel at the settlement thereof, and did not agree to the same. It is indorsed, “The foregoing bill of exceptions is hereby settled as correct. Dated May 20, 1898. Jas. M. Troutt, Judge.” FTo claim is made that it was served upon the respondent, or that he was present -when it was signed, but it is stated in an affidavit filed by appellant that immediately upon the order being made, and in open court, the appellant did abject and except to the order, and stated that he would at once present to the judge for settlement a bill embodying the said exceptions.' That no objections were made by counsel for respondent. That appellant’s counsel immediately prepared a rough draft of the proposed exceptions and presented it to the judge. That the judge, after suggesting some changes, stated that if the draft were properly engrossed or typewritten that he would approve the same. This was about noon on May 19, 1898. That afterward, about 3 o’clock P. M., the appellant returned to the courtroom with said draft properly prepared, but that court had adjourned for the day, and the judge could not be found. That thereafter, on the morning of the 20th, he returned with the prepared hill and secured the signature of the judge thereto. We do not think the judge, after the court had adjourned for the day, in the absence of respondent’s counsel, without his consent and without notice to him, could, on the