Livingston v. Miller — 7 How. Pr. 219

Majority

p. 219

COURT OF APPEALS.

Livingston appellant agt. Miller respondent.

Headnote

Where it appears that certain questions of law were actually and distinctly presented by exceptions taken at the trial, and were decided upon the bill of exceptions as settled at the general term of the court below, although said questions do not sufficiently appear by the said bill of exceptions, this court will, on motion, stay the argument of the cause, to give the appellant an opportunity to apply to the court below, at general term, for a resettlement according to the facts.

And the return made to this court, after amendment of the exceptions, will be allowed to retain its original date of filing.

September Term, 1852.

This was an action by Livingston, the plaintiff, against Miller, for the amount of rent accrued upon two leases. The cause was tried at the Columbia circuit, on the 14th June 1849, before Mr. Justice Paige, and a jury. A verdict was found in favor of the plaintiff of $36*89. On the 15th July 1849, the bill of exceptions was settled by the justice who tried the cause. And at the foot of the exceptions the following sentence appears: “ To which charge, and to every part thereof, the counsel for the plaintiff excepted.” The general term of the' Supreme Court, third district, denied a new trial, and judgment for costs was entered in favor of the defendant August 3, 1850.

p. 220

The plaintiff’s attorneys state that exceptions were actually and specifically taken on the trial, naming them, which do not appear in the bill as settled; and that previous to this motion they proposed to defendant’s attorney, in writing, to allow an amendment of the bill of exceptions incorporating such as they claimed were left out, and that such proposition was declined. That not until last June were they aware that this court had changed the practice in regard to exceptions, requiring them to be separately taken.

R. B. & C L. Monell, Attorneys, and Henry Hogeboom, Counsel for Appellant.

Wm, Eno, Attorney, and N. Hill Jr., Counsel for Respondent.

Mr. Hill insisted that the only remedy of the appellant was to discontinue the present appeal. He could then apply in the court below to set aside the judgment, and allow the bill of exceptions to be amended; and if the application was granted, the cause should be reheard in that court upon the amended bill, and a new judgment entered. The practical result of the present application, if successful, will be, that the cause will be heard in this court upon a bill of exceptions which the court below have never passed upon or seen. Non constat that they did not understand the law in respect to the sufficiency of the exceptions, precisely as settled by this court, and gave judgment on that ground. If so, and the bill of exceptions is hereafter amended so as to take away that ground, the judgment may be reversed here, though in strict accordance with the law when rendered. In any view of the matter the cause should be here upon the identical record which was before the court below.

The Court granted the motion of the appellant in the following form.

It being alleged on oath, on the part of the appellant, that certain questions of law were actually and distinctly presented by exceptions taken at the trial in this cause and were decided upon the bill of exceptions in this cause as settled, at the general term of the Supreme Court, on the rendering of the judgment appealed from, although the said questions do not sufficiently

p. 221

appear by the said bill of exceptions; and on hearing Mr. Hogeboom for the appellant, and Mr. Hill for the respondent, it is ordered that the argument in this cause be stayed until the next January term of this court, to enable the appellant to apply to the said Supreme Court in general term, for leave (in case they shall find said allegations of the appellant to be true, and shall deem it meet to grant such leave, to have said bill of exceptions resettled, as of the day of the original settlement thereof before the justice who presided at the trial of this cause, so as to present'those questions of law which were aetuallymade at the trial by exceptions there duly taken, and which, upon the said bill as settled, were passed upon at said general term; and in case the said bill shall be so resettled, it is further ordered that the return on file in this cause in this court be taken from the files to be amended accordingly, and be refiled as of the day of its original filing. And it is further ordered that the appellant do pay to the respondent ten dollars costs of opposing this motion.