tiff or his attorney, and without his consent; which objection is allowed, and made part of the record in this case. Roderick Rose, Judge. Dated April 15, 1890.” A preliminary motion was made in this court to purge the record by striking out the bill of exceptions for the reasons above stated. In support of the motion, respondent’s counsel claims in his brief that “the paper which purports to be a bill of exceptions was settled and signed * * * at a time when the court had no jurisdiction to settle or sign a bill of exceptions; otherwise, the statute limiting such time is of no effect, and the orders of the court extending such time were unnecessary, and there is no limit of time for an exercise of such discretion.” In support of his contention that the act of allowing and signing a bill is essentially a jurisdictional act, in the sense that the court is withont power to do the act after the time limited by statute or extended for that purpose has expired, counsel cites numerous authorities; among others, the following: Hayne, New Trial, p. 773; Higgins v. Mahoney, 50 Cal. 444; Bunnell v. Stockton, (Cal. ) 23 Pac. Rep. 302; Buckley v. Althoff, (Cal. ) 24 Pac. Rep. 635; Gimbel v. Turner, (Kan.) 14 Pac. Rep. 255; Short v. Railroad Co., (Iowa,) 44 N. W. Rep. 539; also Muller v. Ehlers, 91 U. S. 249; and other authorities.
The case last cited follows the rule of the common law which still obtains in the federal courts, and which requires all proceedings in an action of a strictly judicial character, and not ex parte in nature, to be done in term-time. In the case cited the bill was not settled below at the term when the case was disposed of by the trial court, nor was an order entered at such term continuing the matter, and allowing the bill to be settled at a subsequent term. Under the procedure referred to, the court below was without power to allow and sign the bill after adjournment of the term sine die, and hence the supreme court refused to consider it. But this practice has long since been abrogated by statute in Dakota, Section 4828, Comp. Laws, provides, in effect, that the district courts are always open for the purpose of hearing and determining all actions, special proceedings, motions, and applications whatsoever, “except issues of fact in civil and criminal actions.” Under the innovations made by
