Morse v. Evans — 6 How. Pr. 445

Majority

p. 445

SUPREME COURT.

Morse agt. Evans.

Headnote

A bill of exceptions should be settled, signed and sealed by the justice or court to whose decisions the exceptions were taken.

Where a justice of this court dies pending the settlement of a bill of exceptions taken to his decisions, the party will be allowed to make a case containing the exceptions, which may be settled by any justice of the court.

Albany Special Term January 1852.

This action was tried at the Erie circuit in April 1851, before the late Mr. Justice Sill. The plaintiff had a verdict. The defendant’s attorney, within the time allowed for that.purpose, prepared and served a bill of exceptions to which amendments were proposed. Notice of settlement was given, but before the settlement could be had, Judge Sill died. Upon these facts the defendant moved for an order directing the bill of exceptions to be settled in such manner as to the court should seem proper, or for such other relief in the premises as the court should think proper to grant

A. J. Colvin, for Plaintiff.

J. K. Porter, for Defendant.

I do not think it is in the power of the court to grant the defendant the specific relief he seeks. It is an essential element in a bill of exceptions that it should be signed and sealed by the judge or court to whose decisions the exceptions are taken. The court have no power to dispense with this requisite, or to substitute any thing else in the place of it (2 R. S. 422, § 75, 76, 77, 78; Radcliff vs. Rhan, 5 Denio, 234 ; Law vs. Jackson, 8 Cow. 746 ).

But I think the defendant presents a case which entitles him to such relief as the court is able to afford. I can see no objection to his being allowed to make a case by means of which he can probably obtain the judgment at least of this court, in general term, upon the questions he intended to present by his bill of exceptions. Such a case might be presented upon affidavits,

p. 446

in analogy to the provisions of the statute providing for the review of the judgment of a justice of the peace who has died (2 jR. S. 272, §262). But it would probably be still better to have a case settled by one of the justices of this court.

An order may, therefore, be entered authorizing the defendant, within thirty days to serve upon the plaintiff’s attorney a case containing the exceptions taken by him upon the trial. The plaintiff to have twenty days after the service of such case to propose amendments. If the amendments are not assented to, the defendant may, within ten days, notice the proposed case and amendments for settlement according to the practice of this court, before any justice thereof. Upon such settlement the defendant shall furnish the judge with the minutes of trial kept by Judge Sill, or a copy thereof. Either party may also present to the judge upon the settlement, affidavits in respect to any thing which occurred upon the trial. The case so to be settled is to be deemed a case made and settled according to the rules and practice of this court. Neither party is to have costs upon this motion.