Sweet v. Perkins

• Decision Date: 01 June 1885
• Citation: 24 F. 777
• Parties: SWEET v. PERKINS.
• Court: U.S. District Court — Eastern District of Wisconsin

24 F. 777

SWEET v. PERKINS.

United States Circuit Court, E.D. Wisconsin.

June, 1885

F L.Gilson, for the motion.

F. C Winkler, contra.

DYER J.

This is a motion by the plaintiff for leave to settle and file a bill of exceptions preliminary to a removal of the case by writ of error to the supreme court. The action was tried before the court, without the intervention of a jury, Jun 28, 1883, and a finding and judgment in favor of the defendant were made and entered July 23 of the same year. No steps have been taken by the plaintiff from that time to the present application to make or settle a bill of exceptions, and this application is presented within a short time before the statutory period of two years prescribed for bringing a writ of error will expire. Until the present time the court has had no notice of any purpose on the part of the plaintiff or his counsel to prepare and have settled a bill of exceptions in the cause, and no consent of the defendant to now settle the exceptions has been obtained. The question, therefore, is whether, after this long delay, the application to present a bill of exceptions, and have it settled and signed, should be granted. The only excuse made for this delay is set forth in an affidavit, which is now submitted to the court, and in which it is stated that on the rendition of judgment the plaintiff instructed his attorney then in charge of the case to take the necessary steps to remove it to the supreme court; that the plaintiff is informed and believes that his attorney allowed the term at which the action was tried to pass without taking any steps to settle a bill of exceptions that his attorney has since died; that he is advised by his present counsel that a bill of exceptions cannot be allowed except by special leave of the court; and that the plaintiff was and is ignorant of the rules and practice of the court in respect to settling a bill of exceptions, and believed that all things had been done in time to perfect a removal of the cause to the supreme court. This affidavit presents no valid excuse for failing to comply with the rule of court and the requirements of the practice with reference to the preparation and settlement of a bill of exceptions in the case. Section 700, Rev. St., provides that--

'When an issue of fact in any civil cause in a circuit court is tried and determined by the court without the intervention of a jury, according to section 649, the rulings of the court in the progress of the trial of the cause, if excepted to at the time and duly presented by a bill of exceptions, may be reviewed by the supreme court upon a writ of error, or upon appeal.'

Rule 80 of the common-law rules provides that--

'Where exceptions to the opinions of the court are taken by either party on a trial of a cause, or there is a demurrer to evidence interposed, or a special verdict found, the party may be required to prepare his bill of exceptions at the trial, or his demurrer or statement of the evidence, or to put in form the special verdict, or the court will at the request of the parties note the point; and the bill of exceptions, demurrer to evidence, or special verdict shall afterwards be drawn up, amended, and settled before the end of the term.'

Thus it will be observed bills of exceptions must be prepared and settled before the end of the term at which the cause was tried. This requirement is imperative, and, as we shall presently see, has been so held by the supreme court.

Attention was called on the argument to the case of U.S. v Breitling, 20 How. 252, as sanctioning the exercise of a discretion in favor of allowing a bill of exceptions to be now settled. But the facts in that case, upon which the supreme court allowed a bill of exceptions to stand as a part of the record, were exceptional. The bill of exceptions was signed and sealed a day after the adjournment of the court; and attached to the bill were certain explanations made by the judge, in which he stated that the bill of exceptions was presented during the term, and before the court adjourned. The bill was handed back to counsel by the judge, with the request that he submit it to the opposing counsel. On the third day after this, the minutes of the court were signed, and there was an adjournment of the term. Nothing further was heard from the bill until after the lapse of several days, when it was again presented by the attorney for the party who had originally presented it to the court, with written objections of opposing counsel that it could not be signed after the adjournment of the term. These were the special circumstances of that case, and it was held that those circumstances justified...