Preble v. Bates
| Decision Date | 10 December 1889 |
| Citation | 40 F. 745 |
| Parties | PREBLE v. BATES et al. |
| Court | U.S. District Court — District of Massachusetts |
L. C Southard and B. F. Butler, for plaintiff.
Samuel Hoar, for defendants.
The question now before the court is whether a bill of exceptions can be allowed in this case. A verdict was rendered for the plaintiff December 20, 1888, and on December 22, the counsel for the plaintiff consenting, 20 days were allowed the defendants within which to file a bill of exceptions. On January 11, 1889, or within the 20 days, the counsel for the defendant took their proposed bill of exceptions to the clerk's office of the circuit court, and handed it to the deputy-clerk, who then wrote across it, in pencil, the following memorandum: 'Rec'd Jan. 11, 1889.' The objection is made that this was not a filing of the bill of exceptions, and that consequently no bill is now before the court. I cannot see the force of this objection. So far as the counsel for the defendant is concerned, the bill should be considered as filed when taken to the clerk's office and placed in the hands of the proper officer for filing. The form of indorsement which the clerk, as a matter of practice or of convenience, puts upon the paper is immaterial, and cannot affect the rights of the parties. Whether notice was given the plaintiff's counsel of the filing of the bill or a copy was served upon him, or whether what was done was in conformity with the practice in the state courts, (Pub St. Mass. 847,) are also immaterial; because the practice and rules of the state court do not apply to proceedings in the circuit court, taken for the purpose of reviewing in the supreme court a judgment of the circuit court, and such rules and practice, embracing the preparation, perfecting, settling, and signing of a bill of exceptions, are not within section 914 of the Revised Statutes. In re Iron Co., 128 U.S. 544, 553, 9 S.Ct. 150.
The counsel for the plaintiff raises the further objection to the allowance of any bill of exceptions in this case, that a bill of exceptions cannot be signed after the term at which the trial took place, except with the consent of counsel, or the express order of the court, and that in the present case more than one term has elapsed since the trial. After a careful examination of the cases referred to by counsel, I conceive the rule to be this,-- that a bill of exceptions must be signed at the term in which judgment...
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State ex rel. Chester, Perryville & Ste. Genevieve Railway Company v. Turner
...to any other important paper in a case and in other states the principle here discussed has been applied to bills of exceptions. [Preble v. Bates, 40 F. 745; Foster v. Henson, 75 Iowa 291, 39 N.W. Baker v. Milde (Texas), 33 S.W. 152; Eldred v. Malloy, 2 Colo. 20; Young v. Gaut, 69 Ark. 114,......
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Southern Pac. Co. v. Johnson
...seem that the exercise of this discretion is limited under ordinary circumstances, to the same term in which judgment is rendered. Preble v. Bates, 40 F. 745. cannot be done at a subsequent term, except, perhaps, under very extraordinary circumstances. See cases cited supra; also, Bank v. E......
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The Toltec Live Stock Company v. Gillespie
...v. Pabst, 64 Wis. 244; Dobson v. Dobson, 7 Neb. 296; State v. Gaslin, 32 Neb. 291; Greenwood v. Cobbey, (Neb.) 39 N.W. 833; Preble v. Bates, 40 F. 745; U. S. v. 6 Wall. 101.) It was the duty of the court or judge upon presentation of the bill, if incorrect, to have it corrected so as to con......
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New York & N.E.R. Co. v. Hyde, 50.
...shall be taken, yet the law is clear that our jurisdiction is not affected by the delay which occurred in the case at bar. In Preble v. Bates, 40 F. 745, decided in the circuit for the Massachusetts district, December 10, 1889, the bill of exceptions was filed within a few days of the trial......