Wagar v. Peak

• Decision Date: 05 April 1871
• Court: Michigan Supreme Court
• Parties: Ephraim Wagar v. John J. Peak

22 Mich. 368

Ephraim Wagar v. John J. Peak

Supreme Court of Michigan

April 5, 1871

Heard January 11, 1871

Error to St. Joseph circuit.

Judgment affirmed, with costs.

Riley Coffinberry & Keightley, for plaintiff in error.

Mason & Melendy and H. F. Severens, for defendant in error.

OPINION

Graves J.

This case, with several others, was submitted on briefs near the close of the last term, and too late to be disposed of before the adjournment.

On inspecting the record we discover that the assignments of error are all based upon supposed exceptions to refusals to charge as requested and to the charge as given, while the return to the writ of error affords no ground for the objections. The paper in the return subscribed by the circuit judge and denominated a bill of exceptions, neither shows the requests supposed to have been made, or the charge which the court gave, or any decision against the plaintiff in error, or sets forth any exceptions, or, indeed, states that either party prayed instructions; and it does not suggest by any thing contained in it that any other paper was made a part of it.

It is true, we find two papers in the return which seem to have been made as requests on each side, and we notice that the word "refused" is written against those for the plaintiff, and the word "given" against one for the defendant. But these papers and marks have no other authentication or explanation than such as they derive from the circumstance that they are bound up in the return to the writ. If a paper which is to constitute a part of a bill of exceptions is not incorporated in the body of the bill, as signed by the judge, it must appear by marks, letters, numbers or other means of identification, contained in the bill, that it was made a part of it by the judge who settled it, so as to leave no doubt on the part of the appellate court that the paper was made a part of the record to be examined. Unless this is required, the court of review can never have the requisite assurance that documents presented as belonging to a record to be re-examined are in truth members of the record, and must proceed to act upon whatever happens to be produced, without regard to defects in authentication. It is very clear that the papers in question cannot be considered as forming part of the bill of exceptions.

It may have been supposed that, under the act of 1869, Laws of 1869, p. 113, to regulate the...