Pollock v. Aikens

• Decision Date: 09 December 1893
• Citation: 4 S.D. 374,57 N.W. 1
• Parties: ELLEN POLLOCK, Relator, v. HON. F. R. AIKENS, Circuit Judge, Respondent.
• Court: South Dakota Supreme Court

4 S.D. 374

57 N.W. 1

ELLEN POLLOCK, Relator,

v.

HON. F. R. AIKENS, Circuit Judge, Respondent. South Dakota Supreme Court Original Proceedings Writ granted Crawford & DeLand, Pierre, SD Attorney for relator. Palmer & Rogde, Sioux Falls, SD Attorneys for respondent. Opinion filed December 9, 1893

BENNETT, P. J.

This is an original proceeding in this court by mandamus to compel respondent, as judge of the second judicial circuit of the State of South Dakota, to settle and sign a bill of exceptions in a certain case heretofore pending in said circuit in and for Minnehaha county, in which Edward E. Pollock was plaintiff, and the relator, Ellen Pollock, was defendant. A final decree in the aforesaid action was made on the 31st day of March, 1892, and duly continued to the 12th day of April, at which time a stay of proceedings was granted for 60 days, in order to give the defendant in the action time to make and serve a notice of intention to move for a new trial, and to make and serve a draft of a proposed bill of exceptions, and to have the same settled. From the record it appears, beyond dispute, that in the interim between the date of the entry of the final decree, viz., April 12th to July 29th, there were several extensions of time allowed by the court or judge, in which said bill with the amendments could be presented and proposed for settlement. Upon notice duly given the plaintiff’s attorney in the aforesaid action, the attorney for the defendant, upon the 30th day of July, filed a draft of the bill of exceptions as proposed by him, together with the amendments as proposed by the attorneys for the plaintiff, in the office of the clerk of the circuit court of Minnehaha county, the county in which the action was heard and determined, and the clerk of said court placed the following indorsement thereon: “Filed for settlement by the judge, by defendant’s attorneys, the 30th day of July, A. D. 1892, at 9:30 A. M. Albion Thorne, Clerk.” The record further shows that a few days afterwards—the date is not distinctly stated, but before the same was presented to the judge by the clerk or opposing counsel thereto—the defend-ant’s counsel came and took the papers away, and they were not returned until the first days of February, 1893, when the clerk was requested to notify the respondent, as judge, that the proposed bill and amendments were in his possession, and to request the said judge to sign an order setting a time and place for the settling of the same. The record fails to disclose that the clerk ever complied with the request of defendant’s counsel, or that the respondent had knowledge that a draft of the bill and amendments was on file in the clerk’s office, or that it was left there for his settlement and signature. The record further shows that on the 7th day of March, 1893, the bill and its amendments were presented to the respondent with a request that it settled and signed, but respondent declined to take any action whatever in the premises. This application was made at Flandreau, Moody County, S. D., one of the counties comprising the second judicial circuit, of which the respondent was the circuit judge. After the refusal of the respondent to act upon the settlement of the bill, etc., the attorney for the defendant and relator left the papers with the clerk of the circuit court of that county, with instructions to forward them to the said attorney when the respondent had taken action thereon. In July, 1893„ the papers were forwarded by that clerk to the clerk of Minnehaha county, but no action whatever has been taken by the respondent in relation to the said bill of exceptions and its proposed amendments To compel some action by the respondent, the relator asks for a writ of mandamus.

The question is, do the facts disclosed in the record entitle the relator to the writ? The provisions of our statute in reference to the settlement of a bill of exceptions taken at a trial are to be found in Section 5083, Comp. Laws, which is as follows:

“When a party desires to have exceptions taken at a trial settled in a bill of exceptions, he may, within thirty days after the entry of judgment, if the action were tried by a jury, or after receiving notice of the entry of judgment, if the action were tried without a jury, or such further time as the court in which the action is pending, or a judge thereof, may allow, prepare the draft of a bill and serve the same, or a copy thereof, upon the adverse party. … Within twenty days after such service the adverse party may propose amendments thereto and serve the same, or a copy thereof, upon the other party. The proposed bill and amendments must, within ten days thereafter, be presented by the party seeking the settlement of the bill to the judge who tried or heard the case, upon five days’ notice to the adverse party, or be delivered to the clerk of the court for the judge. When received by the clerk, he must immediately deliver them to the judge, if he be in the county; if he be absent from the county and either party desire the papers to be forwarded to the judge, the clerk must, upon notice in writing of such party, immediately forward them by mail or other safe channel; if not thus forwarded, the clerk must deliver them to the judge immediately after his return to the county. When received from the clerk, the judge must designate the time at which he will settle the bill, and the clerk must immediately notify the parties of such designation.”

Under the provisions of the statute, when a party desires to have a bill of exceptions settled, he may pursue one of two methods. First, after the draft of the bill, and the amendments, if any thereto, have been prepared and served by the respective parties within the time prescribed by the statute, or the extensions allowed by the court or judge, the proposed bill and amendments may be presented, by the party seeking the settlement, to the judge who tried the case, upon five days’ notice to the adverse party; or, secondly, the party seeking the settlement may deliver the proposed bill and amendments to the clerk of the court in which the case was pending, for the judge. In the latter case it is the duty of the clerk to present the bill and amendments to the judge, if he be within the county; if not, upon written notice of the party, forward them to the judge by some safe channel; if not so forwarded, the clerk must deliver them to the judge immediately after his return. When either course here indicated is pursued, a plain statutory duty is cast upon the judge to settle the bill, and the party appealing has an absolute right to demand its settlement, which can be enforced by mandamus; but, when the statute is disregarded by the party seeking to avail himself of its privileges, his right to demand a settlement of the bill becomes conditional, and dependent upon his ability to prove that his negligence is unavoidable or excusable. Whether it is or not is a question to be determined by the judge, acting judicially, upon the evidence, and his decision cannot be controlled by mandamus unless his refusal to act involves an abuse of his discretionary powers.

In the case at bar it is conceded that the relator was within the statute up to the 30th day of July, 1893, and had a right to have her bill settled by the respondent. On that day the record discloses that the relator had the bill and amendments filed with the clerk of the court. This showed that she intended to have it presented to the respondent through the avenue of the clerk’s office. It is true, the clerk says that by an...