Witbeck v. Waine

Headnote

An application for a re-settlement of a bill of exceptions must be made to a •Justice of the Supreme Court, at special term, notwithstanding an appeal is pending in the Court of Appeals; and it is not necessary to apply first to the •-Court of Appeals, to have the cause remitted to the Supreme Court, before malting such application.

An appeal was taken to the Court of Appeals from a judgment rendered in the Supreme Court. An error having been' ■committed in turning the case into a bill of exceptions, and in settling the same, a motion was made in the Supreme Court,, at special term, before Justice Parker, for an order directing a re-settlement of the bill of exceptions. The motion was resisted on the ground that the cause was then pending in the Court ■of Appeals, and that the Supreme Court had no jurisdiction to •order a re-settlement of the bill -of exceptions, until the Court ■of Appeals had remitted the cause to the Supreme Court, for that purpose.

The justice overruled the objection and ordered a re-settlement, and the defendant appealed from the order to the general term.