Western Dredging & Improvement Co. v. Heldmaier

• Decision Date: 15 October 1901
• Docket Number: 808.
• Parties: WESTERN DREDGING & IMPROVEMENT CO. v. HELDMAIER.
• Court: U.S. Court of Appeals — Seventh Circuit

111 F. 123

WESTERN DREDGING & IMPROVEMENT CO. v. HELDMAIER.

No. 808.

United States Court of Appeals, Seventh Circuit.

October 15, 1901

Ira C Wood, for the motion.

John M Duffy, opposed.

The trial of this cause was had before the district judge of the United States for the Eastern district of Wisconsin presiding by assignment in the court below. Subsequently at the same term of court a bill of exceptions was prepared and presented to the district judge of the United States for the Northern district of Illinois, who signed and attached thereto the following certificate: 'And, for as much as the matters above set forth do not fully appear of record the plaintiff tenders this his abstract of record and bill of exceptions, and prays that the same may be signed and sealed

by the judge of this court pursuant to rules thereof, which certificate is (in the absence of the trial judge, Hon. Wm. H. Seaman, from the circuit) accordingly made and herewith attached this 27 day of June, A.D. 1901. ' The bill was at no time attested by the judge who tried the cause. The act of June 5, 1900 (31 Stat. 270), amends section 953 of the Revised Statutes so that it reads as follows: 'Sec. 953. That a bill of exceptions allowed in any cause shall be deemed sufficiently authenticated if signed by the judge of the court in which the cause was tried, or by the presiding judge thereof if more than one judge sat at the trial of the cause, without any seal of the court or judge annexed thereto. And in case the judge before whom the cause has heretofore been or may hereafter be tried is, by reason of death, sickness or other disability, unable to hear and pass upon the motion for a new trial and allow and sign said bill of exceptions, then the judge who succeeds such trial judge, or any other judge of the court in which the cause was tried, holding such court thereafter, if the evidence in such cause has been or is taken in stenographic notes, or if the said judge is satisfied by any other means that he can pass upon such motion and allow a true bill of exceptions, shall pass upon said motion and allow and sign such bill of exceptions; and his ruling upon such motion and allowance and signing of such bill of exceptions shall be as valid as if such ruling and allowance and signing of such bill of exceptions had been made by the judge before whom such cause was tried; but in case such judge is satisfied that owing to the fact that he did not preside at the trial, or for any other cause, that he cannot fairly pass upon said motion, and allow and sign said bill of exceptions, then he may in his discretion grant a new trial to the party moving therefor. ' The defendant in error now moves the court to suppress and strike from the abstract of record and return to the writ of error so much thereof as includes the bill of exceptions so signed and filed in the court below.

Before JENKINS and GROSSCUP, Circuit Judges.

JENKINS Circuit Judge (after stating the facts).

Before the amendment of ...