Amaker v. New, 11 S. E. 386. The complaint alleged and the answer denied negligence in handling defendant’s engine; the burden was on plaintiff to prove negligence; no attempt to prove it was made; therefore the court’s instruction that an engine may cause fires through negligence in its management, was error, because not applicable t@ the facts proved and because it tended to mislead the jury by directing their attention to an assumed act of negligence: Babcock v. R. R. Co., 33 N. W. 628; Fisk v. R. BR. Co., 38 id. 132; Jones v. Mathieson, 2 Dak. 531.
S. L. Glaspell, for respondent: There is no jurisdiction to settle bill of exceptions after the time limited by law or extended by the court has expired: Comp. Laws, § 5083; Hayne on New Trial, p. 773; Higgins v. Mahoney, 50 Cal. 444; Gimbel v. Turner, 14 Pac. 255; Hake v. Struble, 12 N. E. 676; Finley v. Whitley, 22 N. E. 640; Muller v. Ehlers, 91 U. S. 249; Sisson v. State, 45 N. W. 1129; City v. Shipley, 13 Atl. 375.
Wallin, J. This is an action to recover damages for injuries to property caused by a prairie fire which plaintiff alleges resulted from the defendant’s negligence. A verdict and judgment were rendered for plaintiff on December 13, 1889, and by three separate orders the time for preparing and signing a bill of exceptions, and serving a notice of intention to move for a new trial was extended to February 13, March 1, and March 15, 1890, respectively. These orders were duly served on plaintiffs counsel, but were made ex parte, and no cause is spread upon the record for making the same. The notice of intention and the proposed bill were served within the last extension of time, i. e., upon March 14, 1890; but the bill was not settled by the trial court until the period last granted for that purpose had elapsed and not until April 15, 1890. Plaintiff’s counsel appeared, and objected to the settlement of the bill, and his objections were entered upon the record as follows: “The plaintiff objects to the allowance or settlement of this bill of exceptions for the reason that the same was not presented to the court for settlement within the time limited by law, and for the further reason that the orders herein made extending the time for settlement of the bill of exceptions were made ex parte, without notice to plain-
