Laws

State v Chamberlin, 74 Iowa Post Date: Tue, 29 Jul 2008 8:04:04 +0000
Miles v Buchanan, 36 Ind 503; Atkinson v Given, 8 Ind 376; Lawton v Swihart, 10 Ind 562; Simonton v Huntington, etc, Plankroad Co, 12 Ind 380; Rolo- son v Herr, 14 Ind 539; Peck v Van- kirk, 15 Ind 159; Maffett v Pollard, 19 Ind 178; Timmons v Vancleve, 19 Ind 291; Howard v Burke, 14 Ind 35- 5 Muller v Ehlers, 91 U S 250; Walton v U S, 9 Wheat. (U S) 651; Flanders v Tweed, 9 Wal L (U S)425; Generes v Bonnemer, 7 Wal L (U S) 565 United States Court S Practice in the federal courts is not regulated by the provisions of state practice statutes or rules of court as to filing a bil L New York, etc, RCo v Hyde, 56 Fed Rep 188; Chateaugay Ore, etc, Co v Petitioner, 128 U S 544 The rules of common law and Amer- ican and English statutes control, ex- cept so far as modified by the acts of congres S New York, etc, RCo v Hyde, 56 Fed Rep 188 When File d The bill, of course, must be filed within the time so agreed upon, to validate it against the objec- tion of the appelle e Shaw v Nacht- wey, 43 Iowa 653; Lynch v Kennedy, 42 Iowa 220; Lloyd v Beadle, 43 Iowa 659; St John v Wallace, 25 Iowa 21; Frost v Senior, 44 Iowa 706; Ander- son v Leverich, 70 Iowa 741; Parmen- ter v Elliott, 45 Iowa 317; Deland v Weddington, 54 Iowa 698; Cobb v Chase, 54 Iowa 196; Hahn v Miller, 60 Iowa 96; McCoid v Rafferty, 84 Iowa 532; Mineral Ridge Coal Co v Smith, 68 Iowa 561; Short S Chicago, etc, RCo, 79 Iowa 73; Templin v Exchange Bank, 69 Iowa 149; Mc- Carthy -v Watrous, 69 Iowa 260; Mc- Farland v Folsom, 61 Iowa 117 No Order Kef use d In Iowa the time for filing may be extended by a written stipulation of parties filed in the court, without further order of the court. State v Chamberlin, 74 Iowa 266 Where Order Require d Where the statute requires an order, a mereagree- ment of parties is insufficient.

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Steamship Line, 151 Mas S 158 Post Date: Tue, 29 Jul 2008 7:53:20 +0000
Bart- ley v State, in Ind 358 Missour I Prior to Act of 1885 (Laws Mo 1885, p 214) it required both the consent of the attorneys in the cause d NOTICE OF MOTIO N The motion for extension of time to file should be made on due notice to the adverse party of the time and place where it will be mad e 1 6 Notice of Filin g So the notice of filing the bill, where re- quired by statute, must be given to the adverse party within the time required by law, or the exceptions will be dismissed at his instanc e 2 7 Official Default Where seasonably presented, untimely filing does not render the bill irregular where the irregularity is due solely to the delay of the trial judg e 3 and that of the court entered of record to authorize a bill of exceptions to be filed after the term of court at which leave was take N Later rulings held that the consent of the court was im- plied by the entry of leave granted, but the consent of both parties was still essential; and this consent must appear of recor d Duval v Mastin, 28 Mo App 529; West v Fowler, 59 Mo 40; Wilcoxson v McBride, 23 Mo 404; State v McO'Blenis, 21 Mo 273 When Consent Show N Where the record states or shows that the leave was granted to one party on the con- sent of the adverse part Yit is differ- ent. Rine v Chicago, etc, RCo, 88 Mo 401; Hubert / Pickler, 94 Mo 382, modifying Spencer v St Louis, etc, RCo, 79 Mo 500; McCarty v Cun- ningham 75 Mo 279 1 Colorad O Taylor v Derry, 4 Colo App 109 Illinoi S Dickey v Bruce, 21 111 App 448 Indiana New Albany, etc, RCo v Wilson, 16 Ind 402; Noble v Thompson, 24 Ind 346; Sherman v Crothers, 25 Ind 417; Everhart v Hollingsworth, 19 Ind 138 Motion ex Part e Where a motion to extend exceptant's time to file the bill is made ex parte, it is void, and the bill filed within the extended time is a nul- lit Y Taylor v Derry, 4 Colo App 109; Mallan v Higenbotham, 10 Colo264; Troth v Crow, I Colo App 453 Review of OrdeRTo review an or- der granting an extension of time within which to file exceptions, the motion, the ruling, and all facts upon which the ruling is based must be shown by the bill of exception S Lawless v Harrington, 75 Ind 380 2 Conway v Callahan, 121 Mas S 165; Doherty v Lincoln, 114 Mas S 362; Tufts v Newton, 119 Mas S 476; Arvilla v Spaulding, 121 Mas S 505; Purcell v Boston, etc, .Steamship Line, 151 Mas S 158; Spofford v Love- land, 130 Mas S 6 Effect of Extensio N Obtaining an extension of time to file does not dis- pense with the necessity of a notice of filin g Purcell v Boston, etc, Steam- ship Line, 151 Mas S 158 Where Notice of Filing not Give N The question where exceptions were properly allowed when no notice of filing was given maybe presented by a certificate of facts made by the pre- siding judge upon the bill of excep- tion S But a separate bill of exceptions to present the former bill is allow- able, since it raises a question of la W Purcell -v Boston, etc, Steamship- Line, 151 Mas S 158; Conway v Cal- lahan, 121 Mas S 165; Walker v Moors, 122 Mas S 501; Browne v Hale, 127 Mas S 158; Spofford v Loveland, 130 Mas S 6; Blair v Laflin, 127 Mas S 518; Cowleyt / McLaughlin, 141 Mas S 181 The statement in a judge's certifi- cate that the exceptions were "dis- allowed for the reason that no notice appeared to have been duly given of the filing of these exceptions to the adverse party," is conclusive, and can- not be reviewed by the Supreme Court on a petition to establish the truth of the exception S Spofford v Loveland, 130 Mas S 6 How Show N The notice of filing need not appear of record, and will be presumed in the absence of proof to the contrar Y Browrie v Hale, 127 Mas S 158 3 Illinoi S Hawes v People, 129 111 123; Underwood v Hossack, 40 111 98; Magill v Brown, 98 111 235; Hake v Strubel, 121 111 321 Indiana Vincennes Water-Sup- ply Co v White, 124 Ind 376; Terre Haute, etc, RCo v Bissell, 108 Ind 8 How Filing- Shown A GENERALL Y The timely filing of the bill of exceptions must be affirmatively shown by the record proper; 1 a statement by the judge to that effect in the bill of exceptions is insufficient.

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Where an order is made Post Date: Tue, 29 Jul 2008 7:43:04 +0000
58 113; Louisville, etc, RCo v, Harri- gan, 94 Ind 245; Hessian v State, 116 Ind 58; Dunn v Hubble, 8r Ind 489; Shulse v McWilliams, 104 Ind 512; Stewart v State, 113 Ind 505; Pratt v Allen, 95 Ind 404; Sherlock v Bloom- ington First Nat Bank, 53 Ind 73; Loy v Loy, 90 Ind 404; Robinson v Anderson, 106 Ind 152 Maine Field v Gellerson, 80 Me Massachusett S Browne v Hale, 127 Mas S 161; Borrowscale v Bosworth, 98 Mas S 34 But the bill must be filed at some time to become a part of the recor d McCoy v Able, 131 Ind 417; Her- mann v Hartmetz, 128 Ind 353; Mor- gan v East, 4 Ind App 507; Hessian v State, 116 Ind 58; Bierly v Harri- son, 123 Ind 516; Guirl v Gillett, 124 Ind 501; Huntington County v Huff- man, 134 Ih d I What Bill must Sho W But where the bill is filed after the close of the term, it must show affirmatively on its face that it was presented within the time allowe d Kingfisher Bank v Smith (Ok La, 1894), 35 Pac Rep 957 1 Colorad O Eldred v Malloy, 2 Colo20 Indiana Pratt v Allen, 95 Ind 404; Loy v Loy, 90 Ind 404; Dunnz Hubble, 81 Ind 489; Stivers v Mc- Connell, 39 Ind 240; Stewart S State, 113 Ind 505; Applegate v White, 79 Ind 413; Nye v Lewis, 65 Ind 326; Robinson v Johnson, 61 Ind 535; Greenup v Crooks, 50 Ind 410; Rine- hart v Bowen, 44 Ind 353; Goodwin v Smith, 72 Ind 113: Singer Mfg Co v Stuckman, 72 Ind 601; Law v Kauffman, 84 Ind 341; Hart v Walker, 77 Ind 332; Peck v Vankirk, 15 Ind 159; Earl v Dresser, 30 Ind 12; Thompson v Hathaway, 12 Ind 479; Porter v Choen, 60 Ind 338 Massachusett S Browne v Hale, 127 Mas S 161; Doherty v Lincoln, 114 Mas S 362; Barstow v Marsh, 4 Gray (Mas S) 165, modifying Whitcomb v Williams, 4 Pic K (Mas S) 228 Missour I Jones v Christian, 24 Mo App 543; Fulkerson ' Houts, 55 Mo 302; Johnson v Hodges, 65 Mo 589; Dinwiddie v Jacobs, 82 Mo 195- Evidence dehors the record is not admissible to show the seasonable fil- ing of the bil L Eldred v Malloy, 2 Colo20 Indiana In Indiana some cases hold that a recital in the clerk's certifi- cate that the transcript contains all the papers on file, is a sufficient evidence of the proper filing of the bill where the certificate is made within the time required for filin g Hull v Louth, 109 Ind 315; Oliver v Pate, 43 Ind 132; Armstrong v Harshman, 93 Ind 216; Porter v Choen, 60 Ind 338 The Term " Filed" used in a statute intends a record entry by the clerk evidencing the allowance of the bil L Williams v Williams, 26 Mo App 409 Clerk's Default Where a bill of ex- ceptions is deposited with the clerk, with intent that it should be filed, his omission to so indorse it is not fatal to its validit Y Proof of its proper filing may be supplied by external evidenc e Eldred v Malloy, 2 Colo20 The affidavit of the counsel is not sufficient evidence, however; a certifi- cate of the trial judge that the certi- fied bill was seasonably filed should be obtained, or counsel should pro- cure the bill to be again filed, indorsed, and sent up prefaced by the clerk's recitation of the proper filin g Eldred v Malloy, 2 Colo20 Entry on Recor d Where statutes re- quire entry of the bills on the records, the cause will not be heard until the entry is mad e Anonymous, 4 Wen d ( N Y) 193 2 Logansport Gas-Light, etc, Co v Davidson, 51 Ind 472; Stivers v McConnell, 39 Ind 240 Record Entry Prevail S In Hixon v Weaver, 9 Ark 133, it was held that where a bill of exceptions signed by bystanders had an indorsed refusal to file by the judge, and the record con- tained an order that it be filed the record entry must prevai L vacation the record must recite the leave granted to so file it, 1 and a file mark of the clerk must appear showing the filing within the time granted ; 2 or a certificate on the bill of exceptions, authen- ticated by the clerk's signature, must show a proper filin g 3 1 Arkansa S Watson v Watson, 5 Ark 415 Indiana Shewalter v Bergman, 132 Ind 556; Shulse v McWilliams, 104 Ind 512; Stewart v State, 113 Ind 505; Loy v Loy, 90 Ind 404; Hessian v State, 116 Ind 58; Schoon- over v Reed, 65 Ind 313; Applegate v White, 79 Ind 413; Guirl v Gillett, 124 Ind 501; Engleman v Arnold, 118 Ind Si; La Rose v Logansport Nat Bank, 102 Ind 332; Horner v Hoadley, 97 Ind 600; Jones v Jones, 91 Ind 72; Indianapolis v Kollman, 79 Ind 504; Logansport Gas-Light, etc, Co v Davidson, 51 Ind 472; Columbus, etc, RCo v Powell, 40 Ind 37; Fulkerson v Armstrong, 39 Ind 472 Missour I State v Wilson, 44 Mo App 136; Dinwiddie v Jacobs, 82 Mo 195; Pope v Thomson, 66 Mo 661; Eau Claire Lumber Co v Howard, 76 Mo 517; McGrew v Fos- ter, 66 Mo 30; Fulkerson v Houts, 55 Mo 301; Carter v Prior, 78 Mo 222; State v Leslie, 83 Mo 60; Roesler v Citizens' Bank, 88 Mo 565; State v McNamara, 100 Mo 105; Williams v Williams, 26 Mo App 409 Recital in Bill Insufficient. A state- ment in the bill of exceptions alone that an order granting time was made, is insufficient, as it is a court-made order, and should appear regularly in the record entries of the cler K Han- sher v Hanshew, 94 Ind 208; Hall v Stanley, 86 Ind 219; Pratt v Allen, 95 Ind 404; Loy v Loy, 90 Ind 404; Dunn v Hubble, 81 Ind 489; Stivers v McConnell, 39 Ind 240; Jones -v Jones, 91 Ind 72; Louisville, etc, RCo v Harrigan, 94 Ind 245; Horner v Hoadley, 97 Ind 600; Benson v Baldwin, 108 Ind 106; Lake Erie, etc, RCo v Loveland, 14 Ind 291; Schoonover v Reed, 65 Ind 313; Vines v Longacre, 41 Ind 144; Sherlock v Bloomington First Nat Bank, 53 Ind 73; Logansport Gas-Light, etc, Co v Davidson, 51 Ind 472; Walker v Woollen, 54 Ind 164; Trueblood v Nicholson, 52 Ind 420; Jeffries v McNamara, 49 Ind 142; Port v Rus- sell, 36 Ind 60; Helton v Martin, 52 Ind 529; Earl v Dresser, 30 Ind N OrdeRSo the record must show the order extending the time, and counsel cannot waive its appearance therei N Hance v Miller, 21 111 637; Maffett v Pollard, 19 Ind 178; Cable v Smoyer, 19 Ind 202; Peck v Vankirk, 15 Ind 2 Williams v Williams, 26 Mo App 409; Lafollette v Thompson, 83 Mo 199; Ferguson v Thacher, 79 Mo 512; Cox v Blair, 19 Ind 390; Horn- aday v Cooper, 19 Ind 383; Mahon v Mahon, 19 Ind 324; Cable v Smoyer, 19 Ind 202; Maffett v Pollard, 19 Ind 178 3 Williams v Williams, 26 Mo App 409; Lafollette v Thompson, 83 Mo 199; Ferguson v Thacher, 79 Mo 512 Date of Presentatio N The file mark shows properly the date of the presen- tation to the proper officeRSwem v Green, 9 Colo361 Proper Certificatio N The clerk must not only certify that the filing of the bill was within the time given, but he must certify the date of the filing, so that the appellate court may affirma- tively determine that it was season- ably file d Dunn v Hubble, 81 Ind 489; Sherlock v Bloomington First Nat Bank, 53 Ind 73; Toledo, etc, RCo v Howes, 68 Ind 458; Fulker- son v Armstrong, 39 Ind 472 So in Missouri it is held that neither the mere indorsement of the clerk, " filed," with day and date, nor the statement of the judge that it is signed, sealed, and made part of the record, nor both, will suffice as a substitut e There must be a record entry that it was file d Williams v Williams, 26 Mo App 409; Lafol- lette v Thompson, 83 Mo 199; Fulker- son v Houts, 55 Mo 302; Pope v Thomson, 66 Mo 661; Ferguson v Thacher, 79 Mo 512; Roesler v Citizens' Bank, 88 Mo 565 Where the certificate of the clerk authenticating the transcript contain- ing the bill of exceptions bears date within the time given to file the bill, it sufficiently appears that it was season- ably file d Stout v State, 90 Ind i; Armstrong v Harshman, 93 Ind 216; Oliver v Pate, 43 Ind 132; Porter v Choen, 60 Ind 338 Consent Show N Where, as in Missouri, the order extending the time can only be made on consent of the adverse party, such consent must be affirmatively shown by the recor d 1 XI I CONSTITUTING PAET OF THE RECOR d Where duly signed and filed, a bill of exceptions becomes part of the record, whether attached to the judgment roll or not ; a where signed and filed Order Striking out. Where an order is made striking out an original bill and substituting a new bill, the latter should be filed nunc pro tune, and the date of filing the original bill indorsed thereon, Marley v Hornaday, 69 Ind 106; and the record must show when the original was filed, Everett v Gooding, 53 Ind 72 Instance of Record Entr Y A judg- ment was rendered on the 25th day of the term, and immediately after it was this entry, "And the defendant now presents to the court his bill of excep- tions, which is signed by the court and file d" Held, to show that the bill was signed and filed in ter M Nichol v Thomas, 53 Ind 51 Presumptio N The legal presump- tion, where nothing lending a con- trary inference appears, is that the judge signed the bill of exceptions when presented, and that it was filed when signe d Stewart v State, 24 Ind 142 Where filed with the clerk, but not shown affirmatively to have been filed in open court or during the term, it will be presumed not to have been filed until after its close, and so is a nullit Y Hart v Walker, 77 Ind 331 Amendment of Indorsement.

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Tarver v Ran- kin, 3 Post Date: Tue, 29 Jul 2008 7:30:52 +0000
The failure of the clerk to indorse the date of the filing is amendable under the practice of Georgia ; and time to amend may be granted, even until the end of the term, if necessar Y John- son v Johnson, 80 Ga 260; Searcy v Tillman, 75 Ga 504 Nunc pro Tun e Where an order al- lowing a bill of exceptions to be filed in vacation was omitted from the record by mistake, the clerk may, at a subsequent term, allow the record to be amended by inserting such order nunc pro tun e Doane v Glenn, I Colo454 Service of Notic e Service of notice to so amend should be served upon the attorneys who appeared for the opposing parties at the trial of the caus e Doane v Glenn, i Colo454 1 State v Broderick, 70 Mo 623; State v Duckworth, 68 Mo 156; Nel- son v Withrow, 14 Mo App 274; Ruble v Thomasson, 20 Mo 263; Ellis v Andrews, 25 Mo 327; West v Fowler, 59 Mo 40; Bosley v Hart, 7 Mo App 581; Coste v Stifel, 8 Mo App 601 2 Alabama Pearce v Clements, 73 Ala 256; Small v McCalley, 57 Ala 527- Arkansa S Stinson v Shafer, 58 Ark no; Bullock v Neal, 42 Ark 278 California Caldwell v Parks, 47 Ca L 640; Berry v San Francisco, etc, RCo, 47Cal643 Illinoi S Wallahan v People, 40 111 102; Devine v People, 100 111 290; Heinsen v Lamb, 117 111 549; Reeves v Reeves, 54 111 332; Chicago, etc, RCo v Benham, 25 111 App 248; Miller v Jenkins, 44 111 443; Warner v Kelley, 5 111 App 559; Hance v Miller, 21 111 636 Missour I State v McNamara, 100 Mo 100 Nevad A Bowers v Beck, 2 Nev 140 Ohio Smith v Board of Education, 27 Ohio St 44 Wisconsi N Jackson v Belle vie u, 30 Wi S 256; Mead v Walker, 20 Wi S A bill must be made properly a part of the record, otherwise it will not be considere d Baldwin v State, 6 Ohio 15; Acheson v Western Reserve Bank, 8 Ohio 119; Hosmer v Williams, Wright (Ohio) 355 In Mississippi it was said that a bill of exceptions constitutes a part of the record only for the purpose of certifying the facts embodied in it to the appellate tribuna L Green v Ir- ving, 54 Mis S 465; Robinson v Lane, 14 Smed M (Mis S) 161 Distinction between Bills Drawn up in Term and in Vacatio N In some states a distinction is drawn between bills drawn up in term and those drawn up in vacatio N When bills are allowed only in term by order of the court, they become by force of the order a part of the recor d Watson v Watson, 53 Ark 415; Bullock v Neal, 42 Ark before return made on appeal, the clerk should annex the same to the judgment roll; 1 where signed and filed after the return is made, permission may be granted on suggestion of dim- inution in the record to withdraw and annex the bill, or the bill may be sent up by the trial clerk as a supplemental return veri- fied by separate certificat e 2 XII I REMEDY FOR REFUSAL TO SETTLE AND SIGN 1 Duty of Trial Judg e Where the bill of exceptions presented to the trial judge is properly prepared, served, accurate, and seasonably presented, it is his duty to sign it. 3 He cannot legally refuse to take any 1 State v Ah Mook, 12 Nev 373; More v Del Valle, 28Cal170; Wether- bee v Carroll, 33Cal553; Jackson v Bellevieu, 30 Wi S 256 2 Jackson v Bellevieu, 30 Wi S 256; Vroman v Dewey, 22 Wi S 360 By Statut e Where by statute a bill of exceptions becomes a part of the judgment roll by being attached thereto, it need not also be incorpo- rated therei N Schenectady, etc, Plank Road Co v Thatcher, 6 How Pr ( N Y Supreme Ct) 226 Construction of Statut e Where a statute authorizes a bill of exceptions taken on an order overruling a motion for new trial to be made part of the record "if the party so desires," it will, where actually made part of the record, be presumed that the party so desired without an affirmative show- in g Smith -v Board of Education, 27 Ohio St 44 After Remand of Caus e After hear- ing on appeal and remand of the cause for new trial, the bill of exceptions does not constitute a necessary part of the record, and need not there- fore be transmitted upon change of venu e Ellick z/ State, i Swa N (Tenn) 328 The Record Belo W A bill of excep- tions is no part of the record below until acted on in, and sent back from, the appellate court. Tarver v Ran- kin, 3 Ga 213 3 Georgia Mitchell v State, 22 Ga 211 ; Dulin v Caldwell, 29 Ga 362 Illinoi S People v Pearson, 3 111 189; People v Jameson, 40 111 93; People -v Hawes, 25 111 App 326; People v Williamson, 22 111 App 363; People v Anthony, 129 111 218 Indiana State v Slick, 86 Ind 501 Kansa S State v Sheldon, 2 Ka N 322; Litsey v, Moffett, 29 Ka N 507; Gallaher -v Southwood, I Ka N 143; 282; White v Allen (Ky , 1889), n S W Rep 364; Meaux v Meaux, 81 Ky 475; Potter -v Myers, 31 Ohio St 103 But where settled by a judge in va- cation or by bystanders under a stat- utory provision, it does not become part of the record until file d Watson v Watson, 53 Ark 415; Adler v Con- way County, 42 Ark 488 The same rule obtains where it is expressly required to be filed by statute or order of the court.

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McGowen v Campbell, 28 Ka Post Date: Tue, 29 Jul 2008 7:13:30 +0000
Lafollette v Thompson, 83 Mo 199 Filing not Require d In Mississippi it is held that a bill of exceptions be- comes a part of the record by being signed by the judg e It is not neces- sary that it be marked file d Kimball v Mitchell, 57 Mis S 632 The same rule obtains in Georgia Perry v Central RCo, 74 Ga 411, where it is held that signature of a bill of exceptions by the proper judge completes the writ of error, and trans- fers the case to the jurisdiction of the appellate court. Copied in Recor d In West Virginia the instrument purporting to be a bill of exceptions must be copied in the record by an order or memorandum of the trial court entered on the order- boo K Quaker City Nat Bank v Showacre, 26 W Va 53 Justice of Peac e Where properly filed by a justice of the peace, it be- comes a part of the record without being entered at length on his docket. McGowen v Campbell, 28 Ka N 26 Filin g In Ohio, where the bill of exceptions is duly perfected and or- dered to be made part of the record, the mere omission of the clerk to file it during the term will not invalidate it; it is in law, by force of the order, regarded as a part of the record, whether it comes into actual posses- sion of the clerk or not.

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3 C SCOPE Post Date: Tue, 29 Jul 2008 6:55:49 +0000
Potter v Myers, 31 Ohio St 103 Brown v Rhodes, i Ka N 359; Hodg- den v Ellsworth County, 10 Ka N 637; Couse v Phelps, n Ka N 455 Mississipp I Van Buren v State, 24 Mis S 514 Ministerial and Judicial Act S The mere act of signing a bill which the trial judge determines is truthful, is a ministerial act, Jelley v Roberts, 50 Ind i; but the signature of a bill in- volving a decision whether it is truth- ful or not, and whether the trial judge can properly allow it as presented, is a judicial act, Hake v Strubel, 121 111 325; State v Hall, 3 Cold W (Tenn) 262; Miller v Koger, 9 Humph (Tenn) 236 Compliance with Direction S Where the exceptant complies with the orders of the trial judge as to settlement and corrections of the bill of exceptions, and completes and furnishes it to the trial judge in due time, he may have a mandamus as a matter of right if signature is refuse d People v Cir- cuit Judge, 41 Mich 725 1 Where a bill of exceptions is duly presented, the judge, according to strict law, can do only one of two things either return it with his objec- tions, or sign the certificat e Ander- son v Faw, 79 Ga 558 2 Louisiana State z/ Gunter, 30 La An N 536; State v Ford, 37 La An N 443 Nebraska Jewett v Osborne, 33 Neb 24 Tennessee State v Hall, 3 Cold W (Tenn) 263; Mallon v TuckeR Mfg Co, 7 Lea (Tenn) 62 United State S Martin v Johnsen, 21 How (U S) 394 Eule in California In California it is held that an order refusing to settle a bill is appealable, January v Su- perior Ct, 73Cal537; People v Sprague, 53Cal422; People v Getty, 49Cal581 ; but the order rests largely indiscretion, and will not be reviewed unless constituting a manifest abuse of power, January v Superior Ct, 73 Ca L 537 So where, in a criminal case, a bill of exceptions which merely consists of a transcript of the reporter's notes of the evidence and proceedings, is de- fective in form, the appellate court will not review an order refusing to settle it. January v Superior Ct, 73 Ca L 537 Louisiana In Louisiana a bill of exceptions may be taken to the re- fusal of a district judge to allow the filing of a peremptory exceptio N State v Judge, 10 La An N 204 3 Marylan d Marsh v Hand, 35 Md 123; Briscoe v Ward, iHar J (Md) 165 Mississipp I Van Buren v State, 24 Mis S 514 VirginiaTaliaferro v Frail-'" i, i Gratt ( Va) 322; Vaughan v Doe, i Leigh ( Va) 287; Jackson v Hender- son, 3 Leigh ( Va) 215 Form of Special writ The writ, un- der the Statute of Westminster, con- tained a surmise of an exception taken and overruled, and commands the justices, if it be so, that they put their seals to it for testimony, upon which, if it be returned by the judges that it is not so, an action lies for a false re- turn, and thereupon the surmise is tried, and, if found to be so, damages are given, and upon such recovery there issues a peremptory writ Van Buren v State, 24 Mis S 514, citing Tidd's Pr 864 Eemedy Statutor Y The Statute of Westminster expressly provided that a writ commanding the justices to affix their seal to the bill might issue upon their refusal to sig N The method prescribed by the statute is therefore exclusive, and no appeal will lie from an order refusing to sign and seal a bill of exception S Statute of WeSt, 13 Ed W I, C 31; 2 Tidd's Pra C 913; Marsh v Hand, 35 Md 125- b FORM OF THE WRIT Refusal to Take Any Actio N Where the trial judge refuses to sign or settle any bill whatever, a writ will issue commanding him to authenticate the bill if it be found corre Ct 3 Refusal to Act on Particular Bill Alternative Mandamu S Where he has refused to authenticate a particular bill actually presented to him, an alternative writ will issue requiring him to authenticate it, or show in his return the reason why he does not. 3 C SCOPE OF THE WRIT (i) Generall Y But a mandamus can only issue to compel the trial judge to a Ct It cannot direct how he shall a Ct 4 The law imposes on the trial judge alone the duty of determining whether a bill of exceptions is correct or not, 5 1 Alabama Etheridge v Hall, 7 Port.

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1 (2) When Judge Post Date: Tue, 29 Jul 2008 6:41:27 +0000
(Ala) 47 Arkansa S Garibaldi v Carroll, 33 Ark 568 California Hicks v Masten, 101 Ca L 651; Gutierrez v Hebbard (Ca L , !895). 39 Pac Rep 529; Hyde v Thornton, 83Cal83; Sansome v VirginiaPowell v Tarry, 77 Va 250 West VirginiaPoteet v Cabell County, 30 W Va 58; Cummings v Armstrong, 34 W Va I Wisconsi N State v Gale, 7 Wi S United State S Chateaugay Ore, Myers, SoCal483; People v Lee, 14 etc, C O Petitioner, 128 U S 555; Illinoi S People v Anthony, 25 111 App 532; People v Hawes, 25 111 App 326 Indiana Jelley v Roberts, 50 Ind I Iowa U S -v Dubuque County, MorR(Iowa) 31 Kansa S Lewis v Marshall County, 16 Ka N 108; North v Moore, 8 Ka N 143; State v Sheldon, 2 Ka N 322 Louisiana State v Drew, 32 La An N 1043; Broussart v Trahan, 3 Martin ( La) 714 Mississipp I Vicksburg, etc, RCo v Ragsdale, 51 Mis S 457; Van Buren v State, 24 Mis S 512 Missour I State v Field, 37 Mo App 83; State v Wickham, 65 Mo 634; State v Thayer, 15 Mo App New Jerse Y Anonymous, 3 N J L 242; State v Holmes, 36 N J L 62 New York People v Herkimer C P, 7 Wen d ( N Y) 536; People v Judges, 2 John S Ca S ( N Y) 118; People v Judges, i Ca I ( N Y) 511 Orego N Che Gong v Stearns, 16 Ex p Crane, 5 Pet (U S) 190; Shep- pard v Wilson, 6 How (U S) 260 The Appellate Court has power to- issue the writ to effectuate the appel- late jurisdictio N It can only be amended, accordingly, after it has obtained jurisdiction of the cause by- appeal or erroREx p Crane, 5 Pet (U S) 190; People -v Hawes, 30 111 App 94; Hawes v People, 129 111 124 and his decision that the bill is untruthful is final and conclusive, and not subject to revision on appeal to a higher court. 1 (2) When Judge will be Compelled to A Ct It is clearly estab- lished that a mandamus will not issue to compel a trial judge to settle a bill not in accord with his judgment of the facts or evidenc e Incorrect Bil L 'Where, therefore, the judge returns that the bill presented is incorrect, the writ will be refused, and the appellate court will not review his decisio N 2 Cannot Act Arbitraril Y But the trial judge cannot arbitrarily re- fuse to sign a full and fair bill of exception S 3 Seasonableness of Applicatio N In order to compel the judge to act, the application for a writ of mandamus must be seasonably mad e 4 Compliance with Rule S Nor will a judge be compelled by man- damus to sign a bill of exceptions not prepared according to the rules of practic e 5 Iowa Jamison v Reed, 2 Greene (Iowa) 391 Jfansa S Shepard v Peyton, 12 Ka N 616; State v Sheldon, 2 Ka N 322 Michiga N People v Judge, 23 Mich 536 New York People v Justices, 20 Wen d ( N Y)663- Ohio State v Todd, 4 Ohio 351; Creager v Meeker, 22 Ohio St 207 Wisconsi N State v Noggle, 13 Wi S 380 United State S Ex p Bradstreet, 4 Pet (U S) 102 1 Shepard v Peyton, 12 Ka N 616 So where, on application for man- damus, affidavits were filed to show that certain facts were proved to the court below which were not certified in the bill of exceptions, and to these counter-affidavits were filed held, that, the matter resting in the discre- tion of the trial court, a mandamus will not issu e Jamison -v Reed, 2 Greene (Iowa) 394 2 Alabama Ex p Mayfield, 63 Ala 205; Garlington v Jones, 37 Ala 240; Strawbridge v State, 48 Ala 308; Tuskaloosa County v Logan, 50 Ala 503; Small v McCalley, 51 Ala 527; Chapman v Holding, 54 Ala 61 Illinoi S People v Anthony, 129 111 223; People i.

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It should set out substantially Post Date: Tue, 29 Jul 2008 6:27:51 +0000
Pearson, 3 111 189; Hawes v People, 129 111 123; People v Jameson, 40 111 93 Indiana Cluck v State, 40 Ind 263 Louisiana State v Judge, 45 La An N 1218; State v Riculfi, 35 La An N 770 Ohio State v Hawes, 43 Ohio St 25- United State S Ex p Bradstreet, 4 Pet (U S) 102 The writ will not be granted unless a clear abuse of discretion is show N Alexander v State, 14 Lea (Tenn) 91, citing Galloway v Fleing, 2 Le g Rep (Tenn) 62 Nor where the trial judge declares in his return that he is in doubt as to the accuracy of the bil L Page v Clopton, 30 Gratt ( Va) 427 3 Jones v Johnson, 61 Ind 263 Nor can he refuse to embody mate- rial amendments; and where they are clearly shown to be essential and truthful, a mandamus will issue in a proper case to compel their incorpo- ratio N People -v Judge, 24 Mich The truth of a statement must be shown and its materiality to the cor- rectness of the bil L Ex p Huckabee, 71 Ala 428 4 Sprague v Fawcett, 53Cal408 Michiga N People v Judge, 31 Mich 72 5 Georgia McDonough v Sweat, 92 Ga 577 Indiana State v Dyer, 99 Ind 426 Missour I State v Sweeney, 54 Mo App 580; State v Mosley, 116 Mo 545; State v Scott, 109 Mo 226; State v Broderick, 70 Mo 622; State v Hill, 98 Mo 570; Boardman v Vaughan, 44 Other instances of cases in which a trial judge will not be com- pelled by mandamus to sign a bill of exceptions are given in the note S 1 d REQUISITES OF PETITION (i) Generall Y The petition should purport to be made in behalf of a party in interest, should set out the title of the court or cause, and should show from what court the writ is sought. 2 (2) What should be Set out. It should set out substantially the bill of exceptions tendere d 3 It should be verified by the attorney as to the truth of the bill tendered, and as to other facts by either the party or his attorne Y 4 Mo App 549; State v Mansfield, 106 Mo no; McHoney v German In S Co, 44 Mo App 426; State v Apper- son, 115 Mo 470; State v Berry, 103 Mo 367; State -v Ryan, 120 Mo 88; State v Harben, 105 Mo 603; State v Seaton, 106 Mo 208; Walker v Circuit Judge, 31 Mo App 123 New York Midberry v Collins, 9 John S ( N Y) 345; Sikes v Ransom, 6 John S ( N Y) 279 As where a term has elapsed after the filing of the bill, and the except- ant in the meantime has filed as- signments of error to the bill as set- tle d People v Judge, 31 Mich 72 Where no Appeal Take N Where the time for taking an appeal has expired, and no appeal has been taken in a case, mandamus will not issue to compel settlement of a bill of excep- tions therei N Flagg v Puterbaugh, 98Cal134 Laches Second Bill of Exception S But the court will be very slow to grant a mandamus to compel the signature of a second bill of exceptions in the same case on the same point S Will- iams v Clarke, 70 Ga 405 Where the exceptant is guilty of negligence the mandamus will not issu e Williams v Clarke, 70 Ga 405; Cox -v Hillyer, 65 Ga 57 As where the oral evidence has not been duly incorporated therei N Walker v Cir- cuit Judge, 31 Mo 123; Tipton v Renner, 105 Mo 5 A judge will not be compelled to sign a bill where the exceptant fails to comply with all the rules of court, made in the exercise of a reasonable discretion in the imposition of condi- tions for extension of ti Me People v Blades, 104 111 591 1 Matters not Arising on Tria L The trial judge cannot be compelled to sign a bill of exceptions on any matter not arising on the trial and excepted to at the ti Me Davis v Burns, i Mo 264 Exceptions not Take N So where it cannot be determined, from notes, memoranda, or other sources of infor- mation, that the exceptions were in fact taken, a writ of mandamus will oe denie d People ^.

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Page v Clapton, 30 Post Date: Tue, 29 Jul 2008 6:17:08 +0000
Anthony, 129 111223 Truth of MatTer And where the trial judge certifies that he has no evidence of the truth of the matter contained in the bill, the rule will be discharge d Platen v Adams, 72 Ga 199 Illegible Bil L A mandamus abso- lute will not issue to compel a trial judge to certify an illegible, disor- derly, erased, or interlined bill of exception S Cottle v Harrold, etc, Co, 72 Ga 831; M'Call v Walter, 71 Ga 287; Wing v Tompkins, 60 Ga 447; Clayton v May, 68 Ga 27 By ex-Judg e In states where a judge whose term of office has expired is held incompetent to sign the bill, a mandamus of court will not issue to compel hi M People v Altgeld, 43 111 App 462; De Haas v Circuit Judge, 46 Mich 12 2 Landers v Lawler, 84Cal547 An omission, in the statement of the petition that the respondent is judge of the court from which the appeal is taken, does not render it defective, as where the petit ion sets up the trial, etc, in the court in which the respondent is judge, the appellate court will take judicial notice as to who the judge i S Williard v Dillard, 86Cal154 Escaped PrisoneRAn application for a mandamus to compel a trial judge to seal a bill of exceptions on behalf of an escaped prisoner will be denie d The appellate court will not encourage escapes by aiding such appea L People v Genet, 59 N Y 80 3 Engel v Speer, 36 Ga 259 4 Engel v Speer, 36 Ga 258 e RETURN TO ALTERNATIVE writ The return of the trial justice to a writ of alternative mandamus is a pleading, and the rules of construction applicable to pleading in civil actions appl Y 1 Definite Answer Require d He must set forth in detail and with positive allegations the nature of his defense, 2 and either deny the material allegations of the petition, 3 or clearly state facts sufficient to defeat the exceptant's claim to have the bill offered authenticate d 4 Failure to Den Y Where he fails to deny the material allegations of the exceptant's petition, they will be deemed true and a per- emptory writ will issu e 5 Insufficient Retur N Where he fails to show a reasonable excuse for his refusal to sign, or affirmatively shows that only a minis- terial act is required of him, a peremptory writ will be granted requiring its authenticatio N 6 3 Petition to Establish Exceptions A GENERALL Y In some states it is provided by statute that where exceptions taken on the trial are disallowed by the trial judge, the truth of the excep- tions so presented may be established by an appropriate proceed- ing before the appellate court. 7 1 State v, Hawes, 43 Ohio St 17 2 State v Hawes, 43 Ohio St 28, citing Reg v Southampton, IB S 5, 101 E C L 4 3 State v Hawes, 43 Ohio St 17 4 State v Hawes, 43 Ohio St 29 Immaterial Answer S It is an imma- terial answer, to a mandamus to com- pel the filing of a bill allowed by the court, that there is no bill, but only a paper purporting to be and errone- ously recorded as such, and praying inspection of the record, State v Flinn, 10 WeSt L (Ohio) 263; or that it was signed in blank without inspection, under an agreement with counsel afterwards to amend, and that the facts stated therein were not true, State v, Flinn, 10 West L (Ohio) 263 5 Gorgas v Blackburn, 14 Ohio 252; State -v Hawes, 43 Ohio St 29; Co M v Allegheny County, 37 Pa St 277; Springer v Peterson, I Blackf (Ind) 188; People -v Pearson, 3 111 189 Causes of Objectio N Where the judge believes that the bill of exceptions is objectionable, or contains matter not excepted to, or that the same is un- truly or incorrec'ly stated in the bill, he should return the causes of his ob- jection S People v Pearson, 3 111 203 Suggestion of Amendment S It is the duty of the trial judge to suggest amendments when the bill as pre- sented is incorre Ct A return that the bill is untrue, but which does not affirmatively show that he suggested amendments or alterations therein when tendered to him, is insufficient; and a writ will issue requiring him to proceed and settle the bill, and when settled, to sign it. Page v Clapton, 30 Gratt ( Va) 432 Insufficient Retur N So a return to an alternative writ is insufficient which merely alleges that a relator had no authority to compel the re- spondent to sign the bill, since he himself must be judge of the correct- ness of the exceptions, if it fails to show that the bill as presented did not truly state the facts, or that the exception was not taken in the proper time and manneREtheridge v Hall, 7 Port (Ala) 47 6 State v Pugh, 7 Ohio CiRCt Rep 159; State v Hawes, 43 Ohio St 1 6 Must Show Actio N The trial judge in his return must show that he has exercised his discretio N People v, Pearson, 3 111 189, 4 111 270 7 Massachusett S Mas S Ge N Stat, C 115, n, provides that where excep- b SCOPE OF REMED Y This remedy, by petition to the appel- under Code 1876, 3111, is for the appellant to prepare a correct bill of exceptions with points to be re- viewed and statement of facts, and tender it within the proper time to the presiding judge for his signa- ture, requesting him to sign or refuse to sign it as prepare d If he fails or refuses, an application should be then made to the Supreme Court to estab- lish the bill of exceptions upon such evidence as may be deemed satis- factor Y Posey v Beale, 69 Ala 32; Garlington v Jones, 37 Ala 240; Strawbridge v State, 48 Ala 308; Hale v Goodbar, etc, Co, 81 Ala 108; Blake v Harlan, 75 Ala 205 Entry of Judgment on Disallowanc e Where exceptions to the original ac- tion have been disallowed and ad- judged frivolous by the judge before whom the trial was had, judgment may be entered under a general order, subject to be vacated if the supreme judicial court should on petition estab- lish the truth of the exceptions and sustain the M Holbrook v Haney, 124 Mas S 356 What Exceptions may be Prove d The exceptions sought to be proved must have been saved on the trial, and seasonabl Y Joannes v Underwood, 6 Allen (Mas S) 240 Who cannot Petitio N A party, the draft of whose bill of exceptions has been allowed as presented, cannot maintain a petition to the supreme judicial court to establish the truth of the allegations contained in his draft of the exception S Brown v Hale, 127 Mas S 158 Decision by Recor d Whether the judge errs in disallowance of the ex- ceptions is a matter of record, and cannot be decided on oral evidenc e Tufts v Newton, 119 Mas S 476; Brown v Bull, 3 Mas S 211; Fleming v Clark, 12 Allen (Mas S) 191 Argument a WaiveRThe argument of the exceptions as allowed is a waiver of the petition to establish the truth of different exception S Moore v Quirk, 105 Mas S 49 Certiorar I The appellate court will not establish a bill of exceptions nor award a certiorari to bring it into the record, where the bill is defective from the existence of blanks in material parts thereof, and the papers to con- stitute a part of it are not properly by the trial judge, "the truth of the exceptions presented may be estab- lished before the supreme judicial court upon petition setting forth the grievance, and thereupon, the truth thereof being established, the excep- tions shall be heard and the same proceedings had as if they had been duly signed and brought up to said court with the petitio N" California CodeCalCiv Pro, 652, providing that "if a judge in any case refuses to allow an exception in accordance with the facts, the party desiring the bill settled may apply by petition to the Supreme Court, to prove the same," applies only in cases where, upon the settlement of a bill of excep- tions or statement of facts, the judge refuses to allow an exception; but where the judge merely refuses to settle a bill as presented, a mandamus is the proper remed Y Tibbets v Riverside Banking Co, 97Cal258; Sais v Sais, 49Cal263 Section 652 has no application where the judge has refused an ex- ception which he has no power to allo W Vance v Superior Ct, 87Cal390- Where no exception has been dis- allowed, no petition will lie merely to determine whether a judge has in- serted or refused to insert a correct statement of the proceedings in the actio N Vance v Superior Ct, 87Cal390- Section 652 does not apply to cases where a trial judge has refused to settle a statement or bill of exception S Landers v Landers, 82Cal480 Alabama Under Code Ala, 2762, providing that "if the judge try- ing a cause shall fail or refuse to sign a bill of exceptions, the point or decision and the facts being truly stated, the Supreme Court must re- ceive such evidence of the facts as may be deemed satisfactory, and pro- ceed to hear the cause as if the bill had been signed by the court," the proper practice is for the exceptant to establish a bill of exceptions in the Supreme Court on such evidence as would be satisfactory thereto, and not by appeal from a refusal to sig N Turner v White, 97 Ala 545 Establishment by Statut e In Ala- bama the proper practice for the establishment of a bill of exceptions late court, is limited to exceptions taken on the trial and season- ably presented in writing to the trial judg e 1 C REQUISITES OF PETITIO N The petition is a pleading and should be concise, but the averment of superfluous allegations does not require its dismissa L 8 Rules of Court.

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A positive alle- gation Post Date: Tue, 29 Jul 2008 5:58:46 +0000
The exceptants must comply strictly with the rules of court in preparing and filing the petitio N 3 Form Filin g The petition should be verified by affidavits alleg- ing the truth of the exceptions and of the allegations of the peti- tion, 4 and should be filed within the time required by rule of court. 5 identifie d Pearce v Clements, 73 Ala 257; Tuskaloosa County v Lo- gan, 50 Ala 503; Strawbridge v State, 48 Ala 308; Garlington v Jones, 37 Ala 240; Looney v Bush, Minor (Ala) 1 Sawyer v Yale Ironworks, 116 Mas S 424; Joannes v Underwood, 6 Allen (Mas S) 241; Lee v Gibbs, 10 Allen (Mas S) 248; Bottum v Fogle, 105 Mas S 42; Arvilla v Spalding, 121 Mas S 505 2 Lyons v Cambridge, 131 Mas S 571 As where the bill, after alleging the truth of the exceptions and that they should be allowed, said, " or if errone- ous in any respect, or incomplete, a hearing should have been had upon the same " held, that the last aver- ment was superfluous, but not fata L Lyons v Cambridge, 131 Mas S 571 3 Tufts v Newton, 117 Mas S 68; Phillips v Hoyle, 4 Gray (Mas S) 568; Priest v Groton, 103 Mas S 530 4 Tufts v Newton, 117 Mas S 68; Priest v Groton, 103 Mas S 530 Positive Allegation Require d An affi- davit that the statements in the peti- tion are true, to the best of the knowl- edge, information, and belief of the affiant, is insufficient. A positive alle- gation of their truth is require d Hadley v Watson, 143 Mas S 27 Affidavit not Evidenc e The affida- vits so required are not evidence of the truth of the exception S Co M v Marshall, 15 Gray (Mas S) 202 Waiver of Identificatio N An affidavit that the petition to establish excep- tions is not properly verified, in accord- ance with the rule of court, is waived if not made before the commissioner's report is file d Kaiser v Alexander, 144 Mas S 71 Not Curable by Oral Evidenc e The failure of the affidavit to allege the truth of the allegations of the petition cannot be cured by oral evidence that the person signing the petition made the requisite oath and that the certifi- cate of the magistrate is incorrect, or by a new affidavit in proper form made after the expiration of the twenty day S Tufts v Newton, 117 Mas S 68 Annexation of Disallowed Bil L The disallowed bill of exceptions should be annexed to the petition and should allege the truth of the exceptions, and that they were properly taken, filed, and acted on by the presiding judg e Whitford v Knowlton, 6 Allen (Mas S) 557- California The averment of the petition should set forth the state- ments of the bill alleged to be con- trary to the facts, and a statement of the fact S The points of the ex- ceptions should likewise be state d The court can then, by comparing the bill of exceptions as settled or pro- posed to be settled by the judge, with the facts as stated, determine whether or not its statements are contrary to the fact S In re Biddel's Estate, 75 Ca L 229 5 Tufts v Newton 117 Mas S 68; Priest v Groton, 103 Mas S 530; Brown v Gilman, 115 Mas S 56; Phillips v Soule, 6 Allen (Mas S) 150 In Massachusetts the petition to establish the truth of exceptions must be entered on the docket of the su- preme judicial court within a "rea- sonable time" after they are taken, and at the same term at which they would by law be entered if duly signed and allowe d Priest v Groton, 103 Mas S 530 After Time for Entry of Bil L The petition for establishing exceptions cannot be filed after expiration of the time for entering the bill of excep- tion S Elwell v Dizer, i Allen (Mas S) 484- d NOTICE REQUIRE d Notice of the application must be given the adverse party within the time required by the rule S 1 Servic e And a copy of the petition sought to be established should be seasonably serve d 2 e WITHIN JURISDICTION OF FULL BENCH ONL Y In Massa- chusetts a petition to prove exceptions is within the jurisdiction, of the full Supreme Judicial Court onl Y 3 The court may appoint a commissioner to consider the petition and report finding S 4 But the exceptant has a legal right to the revision of his findings by the full court.

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