(dissenting).
Although confronted by an apparently insurmountable rule of civil procedure, I am forced to dissent from the opinion and judgmeant of the court. While the rule seems to have been adhered to with consistent uniformity by the Supreme Court, a different and more just rule has been announced in g0me 0f the states. Indeed, this court, early in its history, recognized that cases might arise in which, to avoid a palpable misearxjage Df justice, the strict letter of the rule may be relaxed.
In Wilkins & Co. v. Hillman 8 App. D. C. 469, the court was considering a case exact- ^ similar to t}le ingtant eag& Tbere th(j tlial áugtíce certiflecl to m aec of a transeript o£ ^ testi taken before H and ^ appeiice conceded that the transcript contained a]1 of ^ testi which the order of ^ eourfc wag d but ag in tMg nQ tion to tbe judgmerit had ^ re_ geryed and tbere therefore, no bill of tjons within tho general rule of roeo_ tee in sneh mtt(m Tbe eonrt a£ter stat_ ^ t}l0 al mle and tbe necessit of ad. borj to % 3ald; «But in view of the fact &at tbere ig a yirtual agreement betwcerl ^ ag to tbo testimony that was adduced ^ tHg and tbe rldi o£ tbe trIal jnBtioe tb and ftat the trial jusüoe bag go ^ tbent;oated tbe pro(i(íodingB beforo Hm; and ^ yiow algo of tbo faet tllatj at or abont ibe timo of the trial of tWs cage by the trial jtts. tic0 M ^ appellant applied lo tbjs comt for formllMion of a spocial rnle to dil.ect the com,so o£ prooodraj in Sllch cases> wMcb ^ wo tbeil declinod to make, we deem it duo £o |bQ eause 0f justice to hold, that tho gtatem0nt ber<! of t]le feial justice eerti£ying to lho proeeodhlgs that wore bad before Hm and ^ b;m which, under other circumstances, ag wag gaid by tbe Supreme Court of tbe United States in the case of Snydam v. Williamson, 20 How. 433 [15 L. Ed. 978], would baye £o be regarded merely as ‘a report of tho . , wbo prcsided at the trial/ and not as a •. o£ tbe reeord ghollld ^ eonsidercd as the , iyalent of a m o£ exceptions-although, ag wag sajd by £be q011ií; 0f Appeals of Maryland in the case, quite similar to the present, of Dumay v. Sanchez, 71 Md. 512 [18 A. 890], our decision in this instance is not to be drawn into a precedent for the government of future cases.”
*186Whenever a modification of the rule has been indulged, the power has heen justified by the exercise of sound judicial discretion; and it may be assumed that a court which exercises this power will be capable of restraining its abuse. The same rule, if strictly adhered to, applies equally to civil and criminal appellate procedure; but the Supreme Court has not hesitated to ignore the rule in criminal cases where in the sound discretion of the court the ends of justice demand it. Wiborg v. U. S., 163 U. S. 632, 658, 16 S. Ct. 1127, 1197, 41 L. Ed. 289; Clyatt v. U. S., 197 U. S. 207, 221, 25 S. Ct. 429, 49 L. Ed. 726; Crawford v. U. S., 212 U. S. 183, 194, 29 S. Ct. 260, 53 L. Ed. 465, 15 Ann. Cas. 392; Weems v. U. S., 217 U. S. 349, 362, 30 S. Ct. 544, 54 L. Ed. 793, 19 Ann. Cas. 705. It seems clear that if such discretion may be indulged in criminal eases no logical reason exists for denying it in a civil ease, where, as in the present case, the ends of mercy and justice can be subserved in no other way. Besides, be it emphatically noted that the Supreme Gourt has never held that in an extreme case this'discretion may not be exereised legally by an appellate tribunal.
Coming now to the consideration of what is actually before us in the instant case, it is agreed that the transcript, as in the Hillman Case, contains a full and true statement of what occurred in the court below. It is duly certified as such by the trial justice, not a mere abbreviated transcript of the testimony, but a complete statement of what occurred, and the facts on which the judgment was rendered. The only thing lacking, for which defendant should not he penalized, was the failure to follow with preciseness the technical legal procedure and to move for judgment at the conclusion of the trial — followed, of course, by exception if it was refused—
The note sued upon as an exhibit was before the court in the reargument of this case, and a comparison of the alleged signature of the defendant thereon with her true signature to the affidavit of defense, and the letter introduced by plaintiff bank, discloses to the inexpert, untrained eye a positive and gross forgery. It is not surprising that the husband refused to testify that it was her signature for fear of self-incrimination; yet, due to a technical oversight of her lawyer, her estate is to be swept away; and a court, convinced of the injustice, is helpless in the exercise of its broad judicial discretion to ignore this technical blunder and give this defendant a fair chance to protect her home by simply granting her a new trial.
The lasting humility imposed upon defendant and her innocent children by a criminal husband and father imposes sufficient burden upon them without adding to their total impoverishment through his criminal act. Can it be that justice is so blind that an insignificant technical error estops a court of justice from extending the relief here so convincingly demanded?
The judgment should be reversed and a new trial granted.