Green v. Russell

Headnote

If the defendant elects that he will abide by a case, instead of a bill of exceptions, on the settlement by the circuit judge, he can not be perniitted afterwards to turn it into a bill of exceptions, without leave of the plaintiff.

Motion to change the case settled in this cause into a bill of exceptions for the purpose of carrying the cause to the court of errors.—Defendant’s facts: cause was once tried, and the evidence offered by defendant was ruled by the circuit judge as insufficient, a case was made, and new trial ordered’ by this court; on the second trial the same evidence was offered, and again decided insufficient by the circuit judge, upon which a stipulation was obtained to make a case or bill of exceptions, and deft, again moved for a new trial, which was denied by this court, on a case- . made and settled by the circuit judge, after having been denied by the circuit judge, which case was drawn as a bill of exceptions, except the concluding part, and was intended to have been turned into a bill of exceptions by defendant if plaintiff would consent, which he declined doing; it was urged on the settlement of the case by defendant’s attorneys, that the circuit judge should settle it as a bill of exceptions, which the judge

declined doing without the consent of plaintiff’s attorney, who was not present. Plaintiff’s facts: Plaintiff states that the circuit judge on the trial gave defendant liberty to give such facts of the evidence offered as [9 went to contradict or explain the acts of affirmance proved by plaintiff, and any other evidence which would go to prove or explain such proof of plaintiff. Plaintiff’s attorney refused to sign a stipulation that defendant might at any time thereafter turn the case into a bill of exceptions, but gave the defendant liberty to take a bill of exceptions or a case, after the same had been settled by the circuit judge as a case, if he would do it then, but defendant’s attorney refused, and said he would abide by the case.