Teller v. Willis

Campbell J.:

Plaintiff in error moves to reinstate this case, which was dismissed as brought into Court too late. The affidavits show that the bill of exceptions, which was signed under a mandamus from this Court, was delayed, in its final settlement, at the request of the counsel for defendant in error. There was no laches in plaintiff in error, or his counsel, up to the time of signing the bill of exceptions. The Avrit was issued and served Avithin a year from that time, but more than two years after judgment.

We think there can be no doubt that the statute bar commences running from the rendition of judgment: — Fleet v. Youngs, 11 Wend. 522; Lee v. Tillotson, 4 Hill, 27; Manhattan Co. v. Osgood, 1 Cow. 65. The exceptions do not operate upon the judgment in any way, until steps are taken to remove the cause for review. And we do not well see how any saving clause can be introduced into the statute, which is not within the fair meaning of its language.

The question then arises, whether a party is bound to wait for the sealing of a bill of exceptions before he issues his writ of error. It is said by Mr. Tidd (2 Tidd's Pr. 863) that by bringing a writ of error before the bill is signed, it is waived. For this he cites Ditton v. Parker, 1 Bing. 17; S. C. 11 Price, 100. The report in Bingham sustains this view,' but the report in Price is more full, and it there appears that while Wood L. took this view, Parke and Burrough, JJ. placed their decision upon a different ground. The case was an application to the Court of Exchequer Chamber to compel the defendant in error to settle a bill of exceptions, .so that the Judge who tried the cause might seal it, and also for an order directing the transcript to be amended by annexing the bill of exceptions when it should be completed. The majority put their decision upon the ground that the Court of King’s Bench must be applied to, in order to obtain the settlement, after which it might be brought up by an allegation of diminution, thus distinctly intimating that when sealed and filed it might be brought up Llike any other omitted portion of the record. ■ The same question came up in the Common Pleas, in Willans v. Taylor, 6 Bing. 512, where, after the case had been removed by writ of error, an order was obtained requiring the plaintiff below, who had retained the copy of exceptions served on him, to return it for settlement. The case of Dillon v. Parker was referred to, and the Court held that it decided nothing which would prevent a party from being entitled to have his exceptions settled; and plaintiff was compelled to obey the order, the Court refusing to discharge it. They said it would be for the' .court of error to determine whether it would be allowed to be taken up after settlement. It appears by the report of the same case in the Exchequer Chamber, Taylor v. Willans, 2 B. & Ad. 845, that a» order was subsequently made in the court of error, allowing the bill of exceptions to’ be tacked to the record; and the decision of the appellate court is based wholly upon the questions raised on exception.

In Willans v. Taylor, the counsel for the plaintiff in error, in order to show that the Court in Dillon v. Parker could not have held a writ of error to be a waiver of exceptions, referred to the almost uniform practice that has always prevailed, of issuing writs of error before judgment is entered (and therefore before exceptions are ever in fact settled), in order to prevent execution. Mr. Tidd recognizes this as the usual practice: — 2 Tidd’s Pr. 1141; see also Arnold v. Sandford, 14 Johns. 417; Richardson v. Backus, 1 Johns. 493.

It is a very common practice to allow parties in error to supply deficiencies in the record, and to apply to the Court below to have the record corrected. In the case of the Manhattan Bank v. Osgood, 1 Cow. 65, the Court of Errors of New York gave leave to plaintiffs in error to withchaw their assignment of errors, and to apply to the Supreme Court to have the real date of giving judgment made to appear, and also to send up the bill of exceptions, when more than five years had elapsed since the date of which judgment was rendered, and that lapse was set up in bar of the writ. It is manifest that cases might easily arise, of which the one before us is an illustration, where the statutory bar might become complete before exceptions could be obtained from the Judge settling thfem. It would lead to singular results, were there any waiver of exceptions caused by suing out a writ before settlement. In Lord Hale’s notes to Fitzherbert’s Natura Brevium, vol. 1, p. 22, note d., occurs this passage. “ By good opinion, one of the justices may deliver the bill into Court without a scire facias ; yet in that oase (11 H. 4. 65,) a scire facias issued, and the justices name and acknowledged their seals; and it was held, that this acknowledgment of the justices might be made long time after the writ of error brought, and after the scire facias awarded, and that no new facias shall issue; for it is now become parcel of the record ah initio, as in the case of diminution alleged after a scire facias. The defendant shall not allege diminution in the bill of exceptions, but ought to have shown his case when the justices came to set their seals. See 1 H. 4, 92. See also 11 H. 4, 67 and note ; 11 H. 4, 92, per Gascoign and Huls. it was held clearly, that the bill may be sealed after the record removed by writ of error.”

Our statute also plainly contemplates that the proper steps may be had to compel the signing of a bill of exceptions by the Judge who tried the cause, without reference to the issuing of a writ of error:— Comp. L. § 4406. But we conceive the rule very clearly settled by the authorities referred to. _ The Supreme j Court will always give a plaintiff in error the benefit of his exceptions, unless by his fault or laches he has occasioned the delay himself, by extending the time for return, or for the assignment of errors, or by allowing a new assignment, as tbe case may require.

The question involved in this motion came up in Brown v. Bissell, 1 Doug. Mich. 273, where it was held by this Court, under our former statutes, that a bill of exceptions signed after error brought was at most merely irregular; and the English cases in 6 Bingham, and 2 Barn. & Ad. were cited as showing that such a bill was good. We have [thought it our duty to examine into the matter somewhat at length, as the counsel for plaintiff in error has been misled by the doctrine laid down by Mr. Tidd, into a mistake which, as the facts appear to us, we regret exceedingly that we are not able to rectify. As the statutory bar is complete, we are compelled to decline to reinstate tbe case. The equities being very plainly with the plaintiff in error, we deny his motion without costs.

Martin Ch. J. and Christiancy J. concurred.

Manning J. was absent at the decision.