Collins v. Christian

• Decision Date: 09 April 1896
• Citation: 93 Va. 1,92 Va. 731,24 S.E. 472
• Parties: COLLINS et al. v. CHRISTIAN, Judge.
• Court: Virginia Supreme Court

24 S.E. 472

92 Va. 731

93 Va. 1

COLLINS et al.

v.CHRISTIAN, Judge.

Supreme Court of Appeals of Virginia.

April 9, 1896.

Bill of Exceptions—Signing: —Mandamus to Judge.

_ 1. Mandamus lies to compel a judge to sign a bill of exceptions as presented to him, where it appears that the facts stated therein were true, as far as they went, and where the objection relied on as a defense to the petition for the writ was the failure of the bill to contain a certain clause, to the insertion of which, it appears, relators would not have objected if respondent had informed them that he desired its insertion.

2. Mandamus will not issue to compel a judge to sign a bill of exceptions which he states does not correctly set out the evidence, and which witnesses testify does not correctly set out their testimony.

Petition by E. F. Collins and others for a writ of mandamus to compel D. A. Christian, judge, to sign bills of exceptions. Granted as to one bill.

J. Singleton Diggs, for petitioners.

H. D. Flood, for respondent.

CARDWELL, J. This is an application to this court to issue a writ of mandamus to compel the Honorable D. A, Christian, judge of the county court of Appomattox county, to sign two bills of exceptions tendered by the relators, E. F. Collins and others, to certain rulings of the judge at the trial of the relators under an indictment for a violation of the election laws, had in the county court of Appomattox at the July term, 1895, which trial resulted in their conviction, and a judgment against each for a fine of $15. The notice and a copy of the petition having been served as required by section 3011 of the Code, the respondent filed his answer, and to this the relators file exceptions; and the case comes on to be heard upon the petition and answer, the exceptions to the answer, and the depositions taken on behalf of the relators and the respondent

The jurisdiction of this court, by mandamus, to compel the inferior courts to sign and seal bills of exceptions, or to amend such bills according to the truth of the case, is no longer an open question in Virginia. Page v. Clop-ton, 30 Grat. 415, and authorities there cited. From the petition is appears that on the morning after the trial had on July 5, 1895, counsel for relators prepared in full four bills of exceptions to certain rulings of the court, being Nos. 1, 2, 3, and 4, and left them with the clerk, and on the 10th of July they asked respondent to sign the bills, and that he promised to attend to the matter the next morning; that during the next day he was again asked to sign them, but did not On the 15th he signed three of them, but for some reason unknown to relators' counsel, as they claim, declined then to sign bill of exceptions No. 1. The county court continued in session until the 18th day of July, trying other cases, and on the 18th, which was the last day of the term, bill of exceptions No. 5 prepared by relators' counsel, containing the certificate of the evidence on the trial, was handed the respondent, or it may have been handed to him on the 17th. At all events, when the July term of his court adjourned, on the 18th, respondent still had bill of exceptions No. 1, given him on the 10th, and No. 5, given him on the 17th or 18th; and up to that time it is claimed by relators that neither they nor their counsel had heard of any objection to either bill, or of any reason why the respondent did not sign them. The answer shows that the statements as to when the bills of exceptions were placed in the hands of the respondent are substantially correct, and, while the respondent says that he told the counsel for relators, when bills numbered 1 and 5 were handed him, that he could not sign them, because they did not state the truth of the case, he does not say that he pointed out to counsel wherein the bills were incorrect, nor that he stated to them the corrections he desired to be made; and it further appears that on the last day of the July term, when the fifth bill of exceptions, setting out the testimony in the case, was presented, the respondent caused to be entered on the order book, by consent of counsel, an order to the effect that, when bill of exceptions No. 5 was agreed upon by counsel (time being given them for the purpose), the bill was to be signed and sealed by the court, and be considered and treated as entered as of that day; nothing being said in the order or by counsel at that time with reference to bill No. 1. The answer then sets forth that after holding the bills of exceptions in question for a considerable time, to enable counsel for relators and the attorney for the commonwealth to agree upon bill of exceptions No. 5, respondent was compelled to redraft both bills, to make them fairly state the truth of the case; "that he did this, but, without signing, he left them at the courthouse for the inspection of counsel for relators, when notice was served upon him that an application would be made to the judge of the Fifth judicial circuit to compel him to sign the bills, and that he then went to the clerk's office, signed them, and made answer to the mandamus nisi issued by the said judge."

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