People ex rel. Teller v. Littlejohn

• Court: Michigan Supreme Court
• Writing for the Court: Campbell J.:
• Citation: People ex rel. Teller v. Littlejohn, 11 Mich. 60 (Mich. 1862)
• Decision Date: 02 December 1862
• Parties: The People on relation of Pierre Teller v. Flavius J. Littlejohn, Judge, etc

11 Mich. 60

The People on relation of Pierre Teller v. Flavius J. Littlejohn, Judge, etc

Supreme Court of Michigan

December 2, 1862

Submitted April 22, 1862

Motion for a mandamus. The facts are stated in the opinion.

Mandamus issued.

Hughes & Wooley, for the motion.

L. D Dibble, contra.

Campbell J. Manning and Christiancy, JJ. concurred. Martin, Ch. J dissented.

OPINION

Campbell J.:

This is an application for a mandamus. Teller being plaintiff in a suit tried before respondent, alleged exceptions upon the trial, which was without a jury. The exceptions were to the decision of the court upon the effect of the plaintiff's evidence, that decision involving questions of law. In pursuance of an understanding between the counsel, in the presence of the judge, he ordered that plaintiff might make and serve a bill of exceptions in twenty days, giving defendant twenty days to propose amendments, and providing for ten days' notice of settlement. This order was never entered, and plaintiff's counsel supposed it allowed him thirty days to prepare his bill, which he served within that time, but not within twenty days. Upon the service defendant's counsel said the time had expired, but retained the paper and made no further objection. Having proposed no amendments, he was served with a notice of settlement for March 19, 1861, which he returned, with a notification that he did not recognize the proceedings. Plaintiff's attorney then, on March 13, 1861, obtained a written order from the judge, extending the time for presenting and settling exceptions to the 22d day of March, 1861, and ordering service of the exceptions and notice of settlement for that day, in season for preparing amendments and attending the settlement under the rule in such case provided. On the appointed day the hearing was postponed by consent, to a subsequent time, no waiver of objections being made. On the day agreed upon the defendant's counsel objected to the settlement, and the court refused to settle the exceptions on two grounds: First, because the plaintiffs counsel did not serve the exceptions within the twenty days first appointed; and, secondly, because no written finding was requested of the court.

There is no rule of court or provision of law which requires a written request for finding, unless where a party desires a detailed finding on the facts of the case, as well as on the law points. See Rule 87. The statute and the rules both recognize fully the right to except for...