McElvain v. Bradshaw

• Decision Date: 05 April 1897
• Citation: 30 Or. 569,48 P. 424
• Parties: McELVAIN v. BRADSHAW, Circuit Judge, et al. [1]
• Court: Oregon Supreme Court

48 P. 424

30 Or. 569

McELVAIN v. BRADSHAW, Circuit Judge, et al. ^[1]

Supreme Court of Oregon

April 5, 1897

Mandamus by M.E. McElvain against W.L. Bradshaw, circuit judge, and others. Writ dismissed.

Dufur & Wilson, for plaintiff.

C.M Idleman, Atty.Gen., and A.A. Jayne, for defendants.

BEAN J.

This is an original proceeding in this court, by mandamus, to compel the judge of the Seventh judicial district to settle and sign a bill of exceptions in a criminal action. The facts, as shown by the alternative writ, answer, and accompanying affidavits, so far as material to any question before us are, in substance, that on October 6, 1896, the petitioner was convicted in the circuit court for Sherman county of the crime of forgery, and on the following day sentenced to the penitentiary for the term of two years. During his trial numerous exceptions were taken to the rulings of the court but they were not reduced to writing at the time, and his counsel asked for and was allowed 30 days after the term in which to prepare and tender a bill of exceptions, but they allowed it to expire without doing so. Thereafter, and on the 1st of December, 1896, what purports to be a bill of exceptions, a copy of which is annexed to and made a part of the petition, was tendered to the trial judge; but he refused to settle or allow it, because, as stated in his answer to the alternative writ, "the plaintiff and petitioner herein and his attorneys, and each of them, had been guilty of carelessness, and that the court had no right to excuse such carelessness on the part of the attorneys in reference to the order of the court, as it would destroy the effect and power of the orders of the court, and place a premium on carelessness," and "that the plaintiff and petitioner, nor his attorneys or either of them, have never applied to or asked this defendant for an extension of the time within which to prepare and present said bill of exceptions, but have carelessly and negligently allowed the time to go by, without preparing or presenting the same, or asking for an extension of time in which to do so, and that this defendant was at all times within the time fixed by said order ready and willing to sign and file a proper bill of exceptions in said case, and was willing, upon a proper showing, to have extended the time within which said bill of exceptions could have been presented, but the plaintiff and petitioner, and his attorneys, and each of them, wholly disregarding said order, carelessly and negligently failed and refused to prepare and present said bill of exceptions within the time fixed by said order, or to ask within said time for an extension of time in which to do so."

It is well settled that mandamus lies in a proper case to compel a trial judge to settle and sign a bill of exceptions, but not to direct him what to put in such bill where there is any controversy as to what it should contain. Elliott, App.Proc. § 516; High, Extr.Rem. § 200; 3 Enc.Pl. & Prac. 489; People v. Anthony, 129 Ill. 218, 21 N.E. 780; Jelley v. Roberts, 50 Ind. 1; State v. Hawes, 43 Ohio St. 16, 1 N.E. 1. And in Che Gong v. Stearns, 16 Or. 219, 17 P. 871, it was held that this court, as an incident to and in aid of its appellate authority, had a right to exercise the power in a criminal case, although the bill was not presented or tendered to him within the term at which the trial was had nor within an extension of time allowed for that purpose, and this must be regarded as the settled law of the state. It follows, then, that the only question for our determination is whether the circumstances attending the case at bar call...