Evans v. William Fisher A
| Decision Date | 30 June 1849 |
| Citation | 5 Gilman 453,1849 WL 4214,10 Ill. 453 |
| Parties | JOSHUA EVANSv.WILLIAM FISHER et al. a |
| Court | Illinois Supreme Court |
THE counsel for the appellees in this case entered a motion, founded upon affidavits filed by him, to strike the bill of exceptions from the files of the court.
Those affidavits set forth that no bill of exceptions was filed in the court below during the term at which the trial took place; that there was a verbal agreement between counsel that the bill of exceptions should be submitted to the counsel of the appellees at the next term of the Putnam circuit court, to be held during the ensuing week, and after being so submitted, it was to be signed by the judge; that, in consequence of the illness of the judge, the anticipated term of court was not held, and no bill of exceptions was then submitted to counsel; that the counsel of appellees heard nothing further in relation to the bill, until informed by the circuit clerk some weeks after that the bill had been filed in his office; and that the bill did not set forth all the evidence heard on the trial, but that material testimony ( it) was omitted.
It appeared by an affidavit filed by counsel for appellant, that, according to the understanding of the affiant, the bill of exceptions was prepared, presented to and signed by the judge within the time stipulated; that the affiant did not understand that it was to be submitted to counsel, though it was expected that counsel would meet at the said term of the Putnam circuit court, which the judge was prevented from attending on account of illness; that the bill was prepared from written notes of the testimony in the cause, and was, as affiant believed, true and correct.
O. PETERS, in support of the motion, contended that by the twenty-first section of the practice act (Rev. Stat. 416,) a bill of exceptions must be taken during the trial, and the judge had no authority to allow one out of term. Our statute is snbstantially like the statute of Westminster, 213 Edw. 1 ch. 32; 1 Bac. Abr. Tit. “Bills of Exceptions.” He also referred to Agnew v. Campbell, 2 Harr. (N. J.) R. 183; Wilson v. Moore, 4 do. 186; Shepherd v. White, 3 Cowen, 32.
This court has disapproved of the practice of signing bills of exceptions out of term. Buckmaster v. Beames, 4 Gilm. 443.
The question as to the construction of our statute was not distinctly presented to the court in that case, yet this is a strong reprobation of the practice that has prevailed, of taking bills of exceptions out of term.
The language of our practice act is too plain to admit of doubt, that the exception to the decision of the court is to be taken “during the progress of the trial.” It can not have any reference to any time after the term.
Though this be the true construction of the act, we do not contend but the parties may waive it, and, by agreement, have the bill of exceptions completed, signed and sealed by the judge out of term. But when an agreement of this kind is made, the agreement must be adhered to by the parties, and the bill of exceptions must be made and completed according to the agreement. In this case, the agreement was not complied with. The counsel for the plaintiffs below were to have an opportunity to see it and correct any error, and have the judge settle any difference that might exist between the counsel of the parties.
[Caton, J. here observed: It is proper that I should state that I was sick at the time this bill was signed; that my term of office was about to expire, and it was deemed necessary to have it completed before I went out of office; and when it was done, the counsel for the defendant below stated that the bill should be open for correction if there was any error in it, and that he would notify the counsel on the other side.]
We contend this does not help the matter. No such notice was given, and the counsel were not aware of any such arrangement; so that neither the agreement of the parties, nor the stipulation of the counsel on the other side has been complied with. It is hoped that the court will now adopt some rule that shall effectually correct the loose and improper practice that has hitherto prevailed on this subject. If parties will agree to have bills of exceptions taken out of term, they ought to be required to make their stipulations in court, so that they may be entered of record, or reduce them to writing and sign them, and let them be placed on the files of the court. This rule will save much misunderstanding, and often prevent injustice.
T. L. DICKEY, for the appellant, resisted the motion:
It has been the practice in the circuit court for years to settle bills of exceptions in vacation--a matter of discretion with the court, as it is said in the case cited from 4 Gilm.
The case cited from 4 Harr. goes to sustain the bill of exceptions in the present case. B. C....
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