Mason v. Phelps
| Decision Date | 25 January 1882 |
| Court | Michigan Supreme Court |
| Parties | MASON and another v. PHELPS. |
The legislature has power to authorize the settlement of a bill of exceptions by the successor in office of the judge who tried the cause.
Where cause was noticed for hearing at a prior term by both parties, and then continued, and afterwards an objection was made, for the first time, that the exceptions had been irregularly settled, held, that the objection was waived.
Blair, Kingsley & Kleinhaus and John Van Arman, for the motion.
Eben Smith and J.C. Fitzgerald, against.
Motion by plaintiffs in error to strike out exceptions as being unlawfully settled, and to remand the case for a new trial because the exceptions cannot now be settled. The facts are that the case was tried by a circuit judge who soon afterwards went out of office, and the bill of exceptions was settled by his successor. The parties agreed entirely on the form of the bill, and there is no complaint of error in it. The statute laws of 1879, p. 5, expressly provide for the settlement of exceptions by the successor of the judge who tried the case under circumstances like these. If the legislature has power to make such a provision there is no irregularity in this case. We have no doubt of the power. Hearing of cases in error on exceptions is now and always has been a matter of statutory regulation; the statute gives the right and determines its limits.
In this case it appears that the case has been noticed for hearing by both parties; that it was so noticed for the October term and then continued, and that the present objection is now made for the first time. These facts would be sufficient to constitute a waiver if the exceptions were irregular. But we think they are entirely regular.
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