Johnson v. Garber

• Decision Date: 14 April 1896
• Docket Number: 372.
• Citation: 73 F. 523
• Parties: JOHNSON v. GARBER et al.
• Court: U.S. Court of Appeals — Sixth Circuit

73 F. 523

JOHNSON v. GARBER et al.

No. 372.

United States Court of Appeals, Sixth Circuit.

April 14, 1896

This is a writ of error to a judgment of the circuit court of the Western division of the Western district of Tennessee in a suit brought to recover upon an attachment bond for the malicious prosecution of an attachment suit against the property of the plaintiff, Edwin L. Johnson. After the hearing of the evidence, upon direction of the court, the jury returned a verdict for nominal damages in the sum of one dollar, upon which the court entered judgment. The only errors assigned are to the charge of the court, and they are based on exceptions the manner of taking which is recited in the bill of exceptions allowed by the trial judge as follows:

'No specific objections were made, at the time of the giving of the charge by the plaintiff, but the judge who tried this cause now states in respect to this matter that it has always been the invariable practice of the court, well known, and acted upon by counsel, though no formal rule to this effect has been adopted by the court, not to require such specific objections to be so taken; but counsel on either side is understood always to have taken the objection to any instruction, or any part of the charge, so that, in subsequently making up the bill of exceptions, he may take any objection as if the rule of taking it at the time had been fully complied with. There was no request on either side for any departure from this practice, and this bill of exceptions is accordingly allowed under the practice here mentioned. The plaintiff's counsel acted upon the expectation, no doubt, of being allowed this privilege. Nothing was said about it on either side. The defendants object, and except to the above action of the court for the reason that the court has never adopted any rule such as is stated to be the practice; and, further, for the reason that no rule of the court or practice of the court authorizes the signing of a bill of exceptions at a term subsequent to the term at which the matters excepted to occurred, especially when there was no agreement between the parties in that effect, and there was no such agreement here. But the court overruled the objection, and the defendants objected, and here note their exception. Plaintiff's counsel, who tried this case, now state that they did not, at the time, formally present exceptions to the charge, as they understood such course was unnecessary and improper, under the practice of the court. The defendants object, and except to the foregoing statement, because neither they nor their counsel agreed to such practice; further, because it is the mere voluntary statement of counsel for plaintiff, made many months after the trial of the cause, and after the judgment had been rendered, and therefore not proper matter for a bill of exceptions; further, because counsel were bound to know there was no rule of this court making it the practice of the court, and therefore they were bound to follow the regular practice, and should have excepted at the time. The court overruled the objections, and defendants excepted, and now note their said exception. The plaintiff, in the manner before stated, excepted to the following portions of the charge delivered to the jury: (Then are set out the exceptions, which it is not necessary to state, in view of the decision of the court.)' Frazer & Heath, for plaintiff in error.

Wm. M Randolph, George Randolph and Edward Randolph, for defendants in error.

Before TAFT and LURTON, Circuit Judges, and SEVERENS, District Judge.

TAFT Circuit Judge.

The exceptions to the charge set forth in the bill of exceptions cannot be considered by this court upon a writ of error because they were not taken at the trial and before the verdict was rendered. The rule is peremptory, and without variation, that a court of error cannot consider an exception which was not tendered at the time of the ruling of the trial court complained of. This has been the uniform construction of the statute of Westminster II. (13 Edw.I.c. 31; 2 Inst. 427), whence came the modern practice in respect to bills of exceptions, and has always been understood to be the rule of law prevailing in appellate proceedings under the common law (Tidd, Prac. *863). In Wright v. Sharp, 1 Salk. 288, a corporation book was offered in evidence at the assizes to prove a member of the corporation not in possession, and refused. No bill of exceptions was then tendered, nor were the exceptions reduced to writing. So the trial proceeded, and a verdict was given for the plaintiff. Next term the court was moved for a bill of exceptions, and it was stirred and debated in court. Chief Justice Holt, in ruling on the question, said:

'The statute, indeed, appoints no time; but the nature and reason of the thing requires the exception should be reduced to writing, when taken and disallowed, like a special verdict, or a demurrer to evidence. Not that they need be drawn up in form; but the substance must be reduced to writing while the thing is transacting, because it is to become a record. So the motion is denied.'

The same view has been taken by the supreme court since its earliest decisions. In Walton v. U.S., 9 Wheat. 651-657, Mr. Justice Duvall said:

'It is a settled principle that no bill of exceptions is valid which is not for matter excepted to at the trial. We do not mean to say that it is necessary (and, in point of practice, we know it to be otherwise) that the bill of exceptions should be formally drawn and signed, before the trial is at an end. It will be sufficient if the exceptions be taken at the trial, and noted by the court with the requisite certainty; and it may afterwards, during the term, according to the rules of the court, be reduced to form and signed by the judge; and so, in fact, is the general practice.'

See Ex parte Bradstreet, 4 Pet. 102-107; Brown v. Clarke, 4 How. 4-15; Sheppard v. Wilson, 6 How. 260-275.

In Phelps v. Mayer, 15 How. 160, it was sought, upon a writ of error, to raise the question of the correctness of the action of the court below in delivering certain instructions to the jury, and in refusing to deliver others. No exception was taken to the...