Laws

Ludlum, 8 Ka N 40 See Post Date: Tue, 29 Jul 2008 15:56:25 +0000
It may be returned within a reason- able time; but the reason for its re- turn should be stated in a notice to the exceptant. Sexton v Willard, 27 Wi S 465- Correct Bil L As to the duty of the trial judge to sign a correct bill, see Remedy for Refusal to Settle and Sign, infr A 4 Williams v Ramsey, 52 Mis S 857; Dibble v Truluck, n Fla 139 Right of Adverse Part Y Where the bill as presented by the appellant does not present all the facts, it is the right of the adverse party to have them in- serted, and mandamus may issue to compel their insertio N Boston, etc, Glass Co z'.Ludlum, 8 Ka N 40 See, Remedy for Refusal to Settle and Sign, infr A In Writin g The judge must prepare proper amendments in writin g Lum v Hoag, 30 Wi S 159 Production of Paper S An exceptant may compel his adversary, by order of court, to produce papers read on the trial for insertion in the bill of excep- tion S Taylor v Spears, 8 Ark 429; Woolfolk v Wright, 28 Ark i; Dil- lard v Parker, 25 Ark 503 The clerk must copy such docu- ments into the bill of exceptions from the original S A copy of a copy is- 48 e PRACTICE ON SETTLEMENT.

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Oary, 105 111 264 Party Post Date: Tue, 29 Jul 2008 15:36:28 +0000
In the settlement of a bill of exceptions the trial judge exercises a wide discretionary poweR1 He may refer to the reporter's notes of the evidence or to his own minutes, 2 and may recall and examine the witnesses as to their testimony on the tria L 3 Actual Event S Only facts actually occurring can be incorporated in the bil L 4 / WHERE ORDER REFUSING SETTLEMENT APPEALABL e The settlement of a bill of exceptions is a "proceeding in an action," within a statute allowing a party to be relieved from the consequences of inadvertence or excusable mistak e 5 And an order not, except by statute, allowabl e Tay- lor v Spears, 8 Ark 429 Immaterial Variatio N A bill will not be corrected by the trial judge merely because the language of the recitals used is different from that desired by the adverse party, where the incor- poration of the language sought could not change its interpretatio N Gulf, etc, RCo v Jones, 73 Tex 232 1 Collier v State, 13 Ark 676 Refusal of Testimon Y So he may even refuse to hear testimony to prove the bill as offered right and his recollec- tion of it wron g State v Lazarus, 35 La An N 1190; State v Gunter, 30 La An N 536 2 Snow v Gould, 74 Me 540 .Where Minutes not Preserve d Where the judge has failed to preserve min- utes of the testimony, he should per- mit the party excepting to make a statement of the evidence, and require it to be submitted to the opposite party for correction; and if the parties cannot agree, the bill must be corrected from the best sources obtainabl e Weatherford v Wilson, 3 111 255 All Available Mean S The trial judge may resort to all available means to determine the fact S People v An- thony, 129 111 222; People v Williams, 91 111 91; People v Gary, 105 111 264 3 Collier v State, 13 Ark 676; r'earson v Grice, 8 Fla 214; People z. Oary, 105 111 264 Party cannot Examin e Where, in settling the terms of a bill, the court recalls a witness to examine him as to his testimony on the trial, neither party can re-examine him in additio N Whitmore v Coates, 14 Mo 9 Practice in South Dakota In Pollock v Aikens ( S Dak, 1893), 57 N W Rep i, 't was said: " Under the pro- visions of the statute [section 5083 Comp Laws], when a party desires to have a bill of exceptions settled he may pursue one of two method S First, after the draft of the bill, and the amendments, if any, thereto have been prepared and served by the re- spective parties within the time pre- scribed by the statute, or the exten- sions allowed by the court or judge, the proposed bill and amendments may be presented by the party seek- ing the settlement to the judge who tried the case, upon five days' notice to the adverse party; or, secondly, the party seeking the settlement may de- liver the proposed bill and amend- ments to the clerk of the court in which the case was pending, for the judg e In the latter case it is the duty of the clerk to present the bill and amendments to the judge, if he be within the county; if not, upon written notice of the party, forward them to the judge by some safe channel; if not so forwarded, the clerk must de- liver them to the judge immediately after his retur N When either course here indicated is pursued, a plain statu- tory duty is cast upon the judge to settle the bill, and the party appealing has an absolute right to demand its settlement, which can be enforced by mandamu S" 4 Schwarze v Spiegel, 41 111 App 355- Facts not Occurrin g Neither the court nor the parties by stipulation can, therefore, make something which has not taken place a part of the rec- or d Schwarze v Spiegel, 41 111 App 355; Harding v Brophy, 133 111 39; Moore v Bolin, 5 111 App 556 5 California Stonesifer v Kilburn, 94Cal33; Lukes v Logan, 66Cal Nebraska Wilson v Macklin, 7 Neb 52 refusing to so relieve an exceptant from a failure to seasonably settle a bill is appealable in California* 9 Resettlement.

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The trial judge may allow Post Date: Tue, 29 Jul 2008 15:20:32 +0000
Where the statements of the bill as settled are deficient or false, a resettlement should be asked before the transcript has been transferred to the appellate court. 2 Where the correction sought is supported by documentary evidence, or is admitted by the adverse party, it should be made as a matter of cours e 3 Otherwise a resettlement should be refuse d 4 New York Wilson v Allen, 3 How Pr ( N Y Supreme Ct) 371; Rich v Husson, i Duer ( N Y) 620; Strong v Hardenburgh, 25 How Pr ( N Y Supreme Ct) 438 Ohio Irwin -v Bellefontaine Bank, 6 Ohio St 86 1 Stonesifer v Kilburn, 94Cal33, citing Calderwood v Peyser, 42Calno; Dooly v Norton, 41Cal440; Clark v Crane, 57Cal630; Empire Gold Mi N Co v Bonanza Gold Mi N Co, 67Cal406, overruling Ketchum v Crippen, 31Cal365, and other early case S And therefore mandamus is not the proper remedy, since a decision whether the case is within the statute is a judicial a Ct Stonesifer v Arm- strong, 86Cal594; Hicks v Masten, 101Cal651 But where no statutory appeal exists, the question whether an appellant who has failed to comply with statutory provisions affecting settlement has made out a case of unavoidable or ex- cusable default entitling him to settle- ment, lies within the province of the trial judge alone to decide upon the facts; his decision thereon is not con- trollable by mandamus, nor appealable within statutory privileg e Pollock v Aikens ( S Dak, 1893), 57 N W Rep I Kemed Y A judge's refusal to settle or insert amendments is ordinarily not reviewable by appeal or writ of erroRBudd v Crea, 6 N J L 370 See Remedy for Refusal to Settle and Sign, infr A After Death of Part Y In Wamble v Graves, i Tex App Civ Ca S, 481, it is held that a bill of exceptions is not a "new" proceeding barred by the death of one of the parties to the suit in which the appeal is taken, but rather part and parcel of the judg- ment itself, since the exceptions taken during the progress of the trial are essential to its proper understanding on appeal, and may be made out ac- cordingly after the death of either of the partie S Massachusetts After Death of Defend- ant. The trial judge may allow a de- fendant's exceptions filed after verdict for plaintiff, although after they were filed and before allowance the defend- ant die d Although the action does not survive if overruled, judgment may be rendered as of the day when ver- dict was returne d Kelley v Riley, 106 Mas S 339; Tapley v Martin, 116 Mas S 275 2 Griffiths v Montandon (Idaho, l8 95), 39 Pac Rep 195; People v Romero, 18Cal90 3 Griffiths v Montandon (Idaho, 1895), 39 Pac Rep 195; People v Romero, 18Calo O 4 Griffiths v Montandon (Idaho, 1895), 39 Pac Rep 195; People v Romero, 18Cal90 Presumptio N Where a trial judge has regularly settled a bill of excep- tions every presumption is in favor of its correctness, and the~adverse party must affirmatively show that the bill so settled is not in accordance with the fa Ct Baird v Gleckler ( S Dak, 1892), 52 N W Rep 1097 Instances of Resettlement.

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But a mere sig- nature Post Date: Tue, 29 Jul 2008 15:04:01 +0000
In Wit- beck v Waine, 8 How Pr ( N Y Su- preme Ct) 433, it was held that, not- withstanding an appeal had been taken to the Court of Appeals from a judgment of the Supreme Court, a justice of the Supreme Court still had jurisdiction at general term to order a resettlement. After Filin g In People v Court of Sessions, 15 How Pr ( N Y Supreme Ct) 385, it was held that the Court of County Sessions of New York had power to order the resettlement of a bill of exceptions, although the bill had been settled and stipulated as cor- rect by the district attorney and the counsel for relator, signed by a majori- ty of the court, and filed with the cler K Correction of Erroneous Dat e Where the date of settlement written I X AUTHENTICATION 1 In Genera L A bill of exceptions to become a judicial record must be duly authenticated, or it will not be considered, although it purports to be suc H 1 2 Signatur e The signature of a bill of exceptions by the ap- propriate official is required to attest the decision of the trial judge that it is an accurate record of the trial-court proceed- ing S 2 An unsigned bill is invalid, 3 unless, of course, expressly declared by statute to constitute part of the record without sig- natur e 4 in the bill is erroneous, the appellant should obtain leave to withdraw the record, in order that the bill, when duly amended by the proper judge, may be attached thereto and returned by the trial-court clerk; but an order allowing the withdrawal is not neces- sary where the bill has been stricken from the files, as it is then under the appellant's contro L Voman v Deu- cey, 22 Wi S 360 1 Colorad O Meyer v Binkleman, 5 Colo133 Illinoi S Fries v Fries, 34 111 App 146; Boyle v Levings, 28 111 314; Gill v People, 42 111 321; Nason v Letz, 73 111 371; Daniels v Shield S 38 111 197; McClurkin v Ewing, 42 111 284 Indiana Aurora F In S Co v Johnson, 46 Ind 317 Kansa S Atchison, etc, RCo v Wagner, 19 Ka N 335; Waysman v Updegraph, McCahon (Ka N) 89; Couse v Phelps, n Ka N 455 Louisiana State v Harris, 39 La An N 228 Wisconsi N Riker v Scofield, 6 Wi S 367; Leonard v Warriner, 20 Wi S 41 United State S On writ of error sued out from the Supreme Court of the territory of Utah, the original bill of exceptions, signad by the trial judge, certified by the clerk of the trial court and by the clerk of the Supreme Court of Utah, transmitted with and filed with the record of the case, was held sufficiently authenticated and identi- fie d Barrett v U S, 137 U S 496 Joinder in ErroRA joinder in error does not vest an unsigned bill of ex- ceptions with validit Y Kerley v Vann, 52 Ala 7 2 Bradway v Waddell, 95 Ind 170; Williams v Pendleton, etc, Turnpike Co, 76 Ind 87; Hill v Hagaman, 84 Ind 287; Stagg v Compton, 81 Ind 171 The settlement of the bill need not be proved as an independent fact, but may be presumed to have been prop- erly made from the signature of the judg e State v Campbell, 20 Nev 125 Where Insufficient. But a mere sig- nature to the certificate of a trial judge that a bill was presented to him for signature at a certain time, without, signature of the bill itself or his cer- tificate of its correctness, is insufficient.

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Brand v Garrett, 62 Post Date: Tue, 29 Jul 2008 14:49:07 +0000
Harvey v State, 5 Ind App 422 3 Indiana Aurora F In S Co v Johnson, 46 Ind 317; Haddon v Had- don, 42 Ind 378; Blizzard v Riley, 83 Ind 302; Keiser v Lines, 79 Ind 445; Clay v Clark, 76 Ind 161; Patterson v State, 10 Ind 551; Eastes v Daubenspeck, 4 Ind 617; Stewart v State, 24 Ind 144; Vanness v Brad- ley, 29 Ind 388; Ex p Gwartney, 27 Ind 189; Halstead v Brown, 17 Ind 202; Fromm v Lawrence, 16 Ind 384; Warren County v Saunders, 16 Ind 405 Mississipp I Graves v Monet, 7 Smed M (Mis S)45 Missour I Perkins v Bakrow, 39 Mo App 332; Puller v Thomas, 36 Mo App 105; Darrah v Steamboat Lightfoot, 17 Mo 276; Hoyt v Will- iams, 41 Mo 270 Tennessee Garrett v Rogers, I Heis K (Tenn)32 I Texa S Clitus v Langford (Tex Civ App, 1893), 24 S W Rep 325 Wisconsi N Ricker v Scofield, 6 Wi S 367 Certificate without Signatur e Where a bill was not signed, a certificate of the trial judge that it contained "a true, full, and complete ex- hibit of all the evidence given in the said cause " was held not to save the document from being a nullit Y Clay v Clark, 76 Ind 162 4 See Burdick v Briggs, n Wi S Waiyer by stipulatio N The signature cannot be waived and the bill validated by express stipulation of counse L 1 3 By Whom Signed A TRIAL JUDG e Ordinarily the bill must be authenticated by the signature of the judge to whose rulings the exceptions were take N* allow a bill to be signed by bystanders, on refusal of the]judge to sign, it must, to be valid, be signed either by the judge or the bystander S Klotz v Per- teet, 101 Mo 215 See Remedy for Re- fusal to Settle and Sign, infr A 1 Robinson zMatthews,i6 Fla 320; Thompson v Seipp, 44 111 App 515; Stock Quotation Te L Co v Chicago Board of Trade, 44 111 App 358; Harding v Brophy, 133 111 39; Moore v Bolin, 5 111 App 556; Crull v Keener, 17 111 246 In Lynch v Craney, 95 Mich 199, it is said that the practice of stipulat- ing a bill of exceptions without the sanction of the judge cannot be com- mended; and if such fact be brought to the attention of the court before the argument of the case, the appeal will be dismisse d Estoppe L But it would appear that where the appellee has failed to raise the objection before the counsel have argued the case, he is estopped to make it at al L Lynch z/Craney, 95 Mich 199 And where parties submit a case knowingly upon an unsigned bill of ex- ceptions, the appellate court will not, after it has rendered a decision, set such decision aside, reinstate the cause, and award a certiorari to bring up a new bill of exceptions, signed by the judge, with the consent of the partie S Kerley v Vann, 52 Ala 7 In California a party may, by stipula- tion, waive the signature of the judge or referee to a bill of exceptions, and consent that a motion for a new trial be heard upon such a bil L Sarver v Garcia, 49Cal218 2 Alabama Ex p Nelson, 62 Ala 376 Arkansa S McNinn v Shultz, 34 Ark 627; Turner v Collier, 37 Ark 529; Bullock -v Neal, 42 Ark 280; Wat- kins v State, 37 Ark 370; Cowald v Altchul, 40 Ark 174 California People v Lee, 14Cal510; De Johnson v Sepulbeda, 5Cal149; Gee -v Terrio, 55Cal381 Colorad O Fechheimer v Troun- stiene, 12 Colo283; Gumm v Metz, 9 Colo580 Florida Robinson v Matthews, 16 Fla 319; Proctor v Hart, 5 Fla 470; Tompkins v Eason, 8 Fla 15 Illinoi S Cline v Toledo, etc, RCo, 41 111 App 516; Chicago, etc, RCo v Marseilles, 107 111 313; David v Bradley, 79 111 316; Fielden v Peo- ple, 128 111 595; Chicago, etc, RCo v Johnson, 34 111 App 351 Indiana Finch v Travellers' In S Co, 87 Ind 302; Ludlow v Walker, 67 Ind 353; Reeder v English, 62 Ind 78; Toledo, etc, RCo v Rogers, 48 Ind 427; Eastesf Daubenspeck, 4 Ind 617; Patterson v State, 10 Ind 551; Fromm v Lawrence, i6Ind 384; War- ren County v Saunders, 16 Ind 405; Halstead v Brown, 17 Ind 202; Ever- hart v Hollingsworth, 19 Ind 138; Stewart v State, 24 Ind 142; Ex P Gwastney, 27 Ind 189; Albaugh v James, 29 Ind 398; Vanness v Bradley, 29 Ind 388; Stewart v Ran- kin, 39 Ind 161; Kennedy v State, 37 Ind 355; Kesler v Myers, 41 Ind 543; Haddon v Haddon, 42 Ind 378; Travellers' In S Co v Leeds, 38 Ind 444; Longworth v Higham, 89 Ind 352 Iowa Fairfield Ind DiSt v Farm- er, 74 Iowa, 744 KentucKy Stanaford v Parker (Ky, 1891), 15 S W Rep 784 Louisiana State v Harris, 39 La An N 228 Missour I Garth v Caldwell, 72 Mo 622; Perkins v Bakrow, 39 Mo App 331; Connelley v Leslie, 28 Mo App 551; Klotz v Perteet, 101 Mo 215; State v Greenwade, 72 Mo 298; Puller -v Thomas, 36 Mo App 105 Nevad A State v Huff, II Nev 17; People v Gleason, i Nev 173 New York Morse v Evans, 6 How Pr ( N Y Supreme Ct) 445; Zabris- kie v Smith, n N Y 480; Law v Jackson, 8 Co W ( N Y) 746: Clark v Dutcher, 19 John S ( N Y) 246 North Carolina Isler v Haddock, 72 N Car 119 Ohio Labold v Wilson, 4 Ohio CiR Ct Rep 345 Orego N Thompson v Backenstos, I Oregon 17 Tennessee Garrett v Rogers, I Heis K (Tenn) 321 Statutor Y Where the statute designates a person to sign the bill, it must be strictly complied with, 1 and the power to sign cannot be delegated to another, since it involves a judicial decision that the bill is corre Ct 2 b REFERE e Where the trial is before a referee, a bill of ex- ceptions taken to his rulings must be signed by hi M 3 C SEVERAL JUDGE S Where court is held by more than one judge, the presiding judge is the proper person to sign the bill, 4 Texa S Hill v State, 10 Tex App 673 35 Tex 348 Ver Mont Hancock v Worcester, 62 Vt 106 West VirginiaCo M v Hall, 8 W Va 259 Wisconsi N Merwins v O'Day, 9 Wi S 156; Conger v Chamberlain, ii Wi S 187; Davis v Menasha, 20 Wi S 194; Riker z/ Scofield, 6 Wi S United State S Ex p Bradstreet, 4 Pet (U S) 102; Sire v Ellithorpe Air Brake Co, 137 U S 579; Mussina v Carazos, 6 Wal L (U S) 355; Young v Martin, 8 Wal L (U S) 355; Lev- eringe v Dayton, 4 Wash (U S)6g8; Origet v U S, 125 U S 240 Cause Tried before City Counci L So where a cause is tried before a city council and a bill of exceptions is allowed, the bill must be signed by the city counci L Bland v Jackson, 51 Ka N 496 Rule in Ohio In Wilson v Gid- dings, 28 Ohio St 561, it was said: " We do not think it essential to the validity of a bill of exceptions in all cases that it be allowed and signed and sealed by i he judges who presided at the trial, unless the same judges also presided at the time the motion for the new tr-al was heard and dis- posed of We think the statute * * * is complied with when the judges who compose the court, or a majority of them, at the time the motion for a new trial is heard and disposed of, allow the bill of exceptions taken to that rul- in g" Appellate Judg e A judge of the Ap- pellate Court cannot as such sign a bill of exceptions without express statu- tory authorit Y Fielden v People, 128 111 595: Davis v Menasha, 20 Wi S 194 Signature by the Last Name of the judge, with the added designation of "judge," is sufficient. Mays v Deaver, I Iowa 216 1 Schaffroneck v Martin, 9 Neb 39; Brand v Garrett, 62 Ga 165 So, where statute requires the bill to be signed by a party or his attorney, substantial compliance must be made; a mere indorsement of the attorney's name on the back of the bill is insuf- ficient. Brand v Garrett, 62 Ga 165 By Cler K Statutes allowing a per- son other than a judge to sign are strictly construe d So, where a stat- ute provides that a clerk may sign in case of the death of the judge, it does not extend to the judge's resignatio N Schaffroneck v Martin, 9 Neb 38 2 Thompson v Seipp, 44 111 App 515; Emerson v Clark, 3 111 489; Byrne v Clark, 31 111 App 651; To- ledo, etc, RCo -v Rogers, 48 Ind 427; Poteet v Cabell County, 30 W Va 58 3 Carlson v Beckman, 35 Neb 392; Light v Kennard, 10 Neb 330; Tur- ner v Turner, 12 Neb 161; State v, Gaslin, 30 Neb 651; Way v Fravel, 61 Ind 162 In Wisconsin, however, it is held that the bill of exceptions taken before the referee must be signed by the trial- court judg e Dougherty v North Wis- consin RCo, 36 Wi S 402; Gilbank v Stephenson, 30 Wi S 157 Master in Chancer Y And in Texas it is held that where a cause is re- ferred to a master in chancery, and a bill of exceptions is allowable there- from by statute, it should not only be approved and signed by the master, but by the court referring the cause as wel L Ballard v McMillan, 5 Tex Civ App 679; Willis v Donac, 61 Tex 588 4 Hotchkiss v Dalton, 46 Con N 467; Small v Haskins, 30 Vt 172; Small v Haskins, 29 Vt 187; State Treasurer v Merrill, 14 Vt 557 Indiana In an early Indiana case it was held that the bill should be signed by a majority of the judges Judges Hearing Parts of Cas e Where different judges hear different parts of the case, each should sign a separate bill embracing the proceedings held before hi M 2 d SPECIAL JUDG e Where a special judge holds the trial, he alone is authorized to sign the bill of exception S 3 holding the trial court.

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See the cases supr Post Date: Tue, 29 Jul 2008 14:29:09 +0000
Gharkey v Halstead, I Ind 389; Miller S Burger, 2 Ind 337 But where the record does not show whether the rest of the judges were present during the trial, although pres- ent at its commencement, it will be pre- sumed, where the bill was signed by the presiding judge alone, that he alone heard the tria L Miller v Bur- ger, 2 Ind 337 1 Clark v Butcher, 19 John S ( N Y) 246; Pratt v Malcolm, 13 John S ( N Y) 320; Birge v People, 5 P Ark CR Rep ( N Y) 12 And see Agnew v Campbell, 17 N J L 291 In Ohio, on appeal from the District Court, all the judges should sign the bil L Wagner v Ziegler, 44 Ohio St 66 Under United States Practice where a bill is certified by a district judge holding circuit court it will be pre- sumed, unless the record shows the contrary, that the circuit justice and circuit judge were not present. Cooke v Avery, 147 U S 375 By Judges Concurrin g Where a statute requires a bill of exceptions taken on motion or order to be signed by the judges concurring in such or- der or motion, it is sufficient if they sign, although the remaining judges do not sig N Bascom v Parrish, 18 Ohio 266 In Virginia it has been held that all the judges who held the trial must sig N Gordon v Browne, 3 He N M ( Va) 219 2 Chicago, etc,RCo v Marseilles, 107 111 313; Safford v Knight, 117 Mas S 281; Doe v Parker, 3 Smed M (Mis S) 114 Where the trial was presided over partly by a regular and partly by a special judge, each should sign a bill of exceptions as to the proceedings held before hi M Bullock v, Neal, 42 Ark 279 Change of Venu e So a court to which a cause is transferred on change of venue can allow no bill of exceptions as to matters which occurred in the court from which the venue was change d Keen v Schnedler, 92 Mo 516 Where venue is changed to a differ- ent circuit, and another judge is ap- pointed to try the cause,, the latter must sign the bil L Lee v Hills, 66 Ind 474 Order Extending Ti Me Where the case is tried by a judge of another dis- trict, who is succeeded, after verdict returned, by the regular judge, who hears a motion for new trial held, that such succeeding judge has au- thority to make an order extending the time, under the statute, for the prep- aration of the bil L State v Gaslin, 32 Neb 291 Preliminary Motio N A trial judge who passes on a preliminary motion in a case may settle a bill of excep- tions embracing the evidence intro- duced on the motion, although an- other judge presided at the trial of the cas e Schields v Horbach, 40 Neb 103 At Different Term S The same prin- ciple requires that where the trial is heard partly at one term and partly at another, a bill embodying the proceed- ings at each term should be signed by the judge presiding at such ter M So where a trial is had and judg- ment rendered at one term, and a mo- tion for new trial is heard and decided at a subsequent term by a different judge, the bill of exceptions taken to each proceeding should be signed by the respective judges who heard them, although the cause is the sa Me Doe v Parker, 3 Smed M (Mis S) 114 3 Watkins v State, 37 Ark 370; Lerch v Emmett, 44 Ind 331 In Mississippi a bill of exceptions must be signed by the regular judge, although a special judge held the tria L Rankin County Sav Bank v Johnson, 56 Mis S 125 Counsel as Special Judg e Where a counsel for one of the parties is elected a special judge, he is disquali- fied by his interest in the controversy from exercising the judicial function e AFTER DEATH OR RESIGNATION OF TRIAL JUDG e The cases are contradictory as to the proper person to sign a bill of exceptions where the judge holding the trial has died, resigned, or gone out of office before the bill is allowe d New Tria L In some jurisdictions the rule obtains that the case must be sent back for a new tria L 1 By SuccessoRIn other states the successor of the ex-judge is held authorized to sign the bill, since the court continues although its personality change S 2 of settling and signing a bil L Water- man v Morgan, 114 Ind 237 After Term Expire S In Indiana it was held that where a special judge, acting under appointment from the duly elected judge, grants leave to file a bill of exceptions, and fixes a time within which it shall be filed, he may properly sign it after his term expire S Shugart v Miles, 125 Ind 1 Marylan d In State v Weiskittle, 61 Md 51, the court says: " In this state it is not admissible for another judge to pass upon the correctness of his predecessors ruling in such cas e The new trial will go as a matter of cours e" Michiga N Scribner v Gay, 5 Mich 512; Van Valkenburg v Rogers, 17 Mich 322; Tefft v Windsor, 17 Mich 425; Tucker v Tucker, 26 Mich 443; Crittenden v Schermerhorn, 35 Mich 370; People v Judge, 41 Mich 726 Englan d Newton v Boodle, 4 Do W L 664; Thomason v Lan- cashire, etc, RCo, 28 L T, N S 819; Nind v Arthur, 7 Do W L 252; Benett v Peninsular, etc, Steamboat Co, 32 Eng L E Q 318 In Michigan the Act of 1879 al- lows the successor of the trial judge to settle a bill of exceptions on the stenographer's minute S See Stebbins v Field, 41 Mich 373 Compare Peo- ple v Judge, 40 Mich 630 Such a statute is constitutiona L Mason v Phelps, 48 Mich 126 So also in North Carolina Iler W Haddock, 72 N Car 119 Compare Alley v McCabe, 147 111 410, where it is seriously doubted whether such a remedy could be had in Illinoi S Season of Bal e The ground of this ruling is, that the settlement and allowance can only be made by the judicial official who is personally cog- nizant of the proceedings, and can testify from his personal knowledge to the accuracy of the bill, and that the exceptant should not lose the benefit of his exceptions because of an event which he could in no wise prevent. See the cases supr A When Motion for New Trial Mad e The motion for new trial must be made promptly or it will be denie d Thom- ason v Lancashire, etc, RCo, 28 L T.

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55- Missour I Sahlein v Post Date: Tue, 29 Jul 2008 14:14:52 +0000
, N S 819 New York In Milvehal z/ Milwar d 2 Duer ( N Y) 607, it was held that when the trial judge had since de- ceased, the court would order the bill to be signed in his name by the cler K Stipulations Where the Rule Prevail S A stipulation entered into by coun- sel, empowering the trial judge to sign the bill after his retirement from office, is a nullit Y Crittenden v Schermer- horn, 35 Mich 370 2 Florida Hayes v McNealy, 16 Fla 408; Bowden v Wilson, 21 Fla 169 Indiana Wood v Ohio Falls Car Co, 136 Ind 598; Hedrick v Hedrick, 28 Ind 291; Smith v Baugh, 32 Ind 163; Toledo, etc, RCo v Rogers, 48 Ind 427; McKeen v Boord, 60 Ind 280; Bement v May, 135 Ind 664; Reed v Worland, 64 Ind 216; Finch v Travellers' In S Co, 87 Ind 302; Travellers' In S Co v Leeds, 38 Ind 444; Lerch v Emmett, 44 Ind 331; Cincinnati, etc, RCo v Grames, 8 Ind App 112; Lee v Hills, 66 Ind 474; Bowlus v Brier, 87 Ind 391; Ketcham v Hill, 42 Ind 64 Where a verified petition, show- ing the refusal of the trial judge to sign a properly prepared and pre- sented bill of exceptions, is presented to his successor, it is the duty of the successor to sign it although the time has expired, and he may be compelled to do so by mandamu S State v Slick, 86 Ind 501; Hedrick v Hedrick, 28 Ind 291; Smith RBaug H 32 Ind 163 Justice Ke-clecte d Where a justice / Ex-JUDG e The prevailing doctrine in the case of the re- moval, resignation, or expiration of the term of the trial judge is that the judicial function survives in him for the purpose of authenti- cating the bill, and he is accordingly the proper person to sig N 1 His successor cannot allow the bill, as he is a stranger to the judicial proceedings related therei N 8 4 Where Signe d Where a trial judge exercises a general juris- diction coextensive with the state, it is immaterial in what part thereof the bill is signe d 3 who holds the trial goes out of office, but is re-elected before the bill is pre- pared, he may properly sign it. Hotch- kiss v Dalton, 46 Con N 472 Judge Previously Attorne Y But one who has previously acted as attorney in the cause cannot sign as such suc- cessoRWaterman v Morgan, 114 Ind 242 Sealin g It was held in Frazier v Laughlin, 6 111 186, that a presiding judge might seal a bill of exceptions after the expiration of his term of offic e Where Court Abolishe d Where the court trying the cause had been abol- ished prior to the signature of the bill by the judge thereof, it was held, in Reed v Worland, 64 Ind 219, that the bill was voi d It should have been signed by the judge of the court to which the jurisdiction of the abolished tribunal was transferre d 1 Missour I Cranor v School DiSt No 2, 18 Mo App 397; Consaul v Lidell, 7 Mo 250; Connelley v Leslie, 28 Mo App 551 Nebraska State v Barnes, 16 Neb 37; Quick v Sachsse, 31 Neb 312 New MexiCo Wheeler v Pick, 4 N Mex 36 Pennsylvania Galbraith v Green, 13 S R(Pa) 86 Wisconsi N Fellows v Tate, 14 Wi S 156; Davis v Menasha, 20 Wi S 205; Hale v Haselton, 21 Wi S 325 Wyoming Stirling v Wagner (Wy- oming, 1892), 31 Pac Rep 1032 Certiorar I In Galbraith v Green, 13 S R(Pa) 85, it is held that the regular mode of procuring a re- turn of bills of exceptions by a judge whose office has expired is by certio- rari directed to hi M 2 Alabama Ex p Nelson, 62 Ala 376 Arkansa S Cowall v Altchul, 40 Ark 174 Colorad O Empire Land, etc, Co v Engley, 14 Colo289; Fechheimer v Trounstiene, 12 Colo282 Georgia Brown v Happ, 39 Ga 61 Illinoi S Chicago, etc, RCo v Johnson, 34 111 App 351; Thompson v Duff, 17 111 App 304; Davis v Bradley, 79 111 316; Jones v Sprague, 3 HI-. 55- Missour I Sahlein v Gum, 43 Mo App 315; Consaul v Lidell, 7 Mo 250 Ver Mont Hancock v Worcester, 62 Vt 108 In Phelps, etc, Co v Conant, 30 Vt 277, it was held that the presiding judge of the county court has no authority to amend a bill of exceptions after his term of office has expire d The rule applies even though the parties to the appeal consent that it may be so signe d Connelley v Les- lie, 28 Mo App 551 In Pennsylvania it is held that, while an ex-judge may sign a bill after the expiration of his term, where the trial judge dies before signature his suc- cessor may sign, and the writ of error on appeal will be continued, to allow it to be don e McCandless v Mc- Wha, 20 Pa St 183 Compare Burk v McMullen, 4 Pa St 317 In Nebraska By Cler K Where the parties interested agree upon a bill of exceptions, and they attach there- to a written stipulation to that ef- fect, the clerk is authorized and may be compelled to sign, if the judge is either disqualified or unable to do So Great Western Mfg Co v Hunter, 14 Neb 452 3 Ex p Nelson, 62 Ala 382; Ba- con v State, 22 Fla 50; Oliver v Toun, 24 Wi S 512 Out of Circuit.

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Ex p Nelson, 62 Ala Post Date: Tue, 29 Jul 2008 14:01:57 +0000
Where the judge of the court who hears the case in one circuit leaves the circuit thereafter and holds court in another circuit, he is not disqualified to settle a bill of 5 How Show N The bill must affirmatively show the signature of the proper officia L 1 A recital in the record that it has been signed is not sufficient. 8 6 Sealing common La W At common law it was essential that the bill of exceptions be sealed by the trial judg e 3 The rule ob- tains generally, although not universally, under modern practic e 4 What Seal Require d The trial judge must attest his signature to the bill by his own seal, not that of the court belo W 5 statute Mandator Y A statute requiring a bill to be sealed is man- datory, and cannot be waived by the express or implied consent of partie S 6 exceptions in the second circuit in a case heard in the first circuit. Ex p Nelson, 62 Ala 377 1 2 Shilito v Thacker, 43 Ohio St 63; Wagner v Ziegler, 44 Ohio St 59; Rankin v Sanderson, 35 Ohio St 482 See Time for Settlement and Signature, infra .

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Morgenson v Middlesex Mi N Post Date: Tue, 29 Jul 2008 13:44:03 +0000
3 Illinoi S Hale v Strubel, 121 111 321 ; Jones v Sprague, 3 111 55 ; Widows', etc, Be N Asso C v Powers, 30 111 App 82; Cline v Toledo, etc, RCo, 41 111 App 517; Chicago, etc, RCo v Johnson, 34 111 App 352 Marylan d Davis v Wilson, 2Har J (Md) 345; Milburn v State, i Md 13 United State S Pomeroy v State Bank, i Wal L (U S) 592 4 Alabama Haden v Brown, 22 Ala 572; Powers v Wright, Minor (Ala) 66 Colorad O De La Mar v Hurd, 4 Colo442; Denver v Capelli, 3 Colo235; Marshall Silver Mi N Co v Kirtley, 8 Colo108; Laffey v Chap- man, 9 Colo304; Reed v Gates, n Colo527; Gates v People, nColo292 Florida Robinson v L'Engle, 13 Fla 482 Illinoi S Reeves v Reeves, 54 111 332; Jones v Sprague, 3 111 55; Frazier v Laughlin, 6 111 186; Planing Mill Lumber Co v Chicago, 56 111 304 Indiana Eastes v Daubenspeck, 4 Ind 617 KentucKy Tweedy v Co M, 2 Mete (Ky) 379- Marylan d Davis v Wilson, 2Har J (Md)345- Mississipp I Stephenson v Smith, 23 Mis S 507; Forniquet v Tegarden, 24 Mis S 96 Missour I Darrah v Steamboat Lightfoot, 17 Mo 277 New York Morse -v Evans, 6 Ho W Pr ( N Y Supreme Ct) 445; Zabriskie v Smith, n N .480; Rad- cliff v Rhan, 5 De N ( N Y) 234 Ohio Shoup v Green (Ohio), 8 WeSt L J 472; Rankin v Sanderson, 35 Ohio St 482 Orego N Thompson v Backenstos, i Oregon 117 United States Court S In the United States courts a seal is not essential to a bill of exception S Herbert v But- ler, 97 U S 320; Generes v Camp- bell, n Wal L (U S) 193, U S Rev Stat, 593 Sufficient Sealin g Where the law allows the substitution of a scroll for a seal, the signature of the bill by the judge with the letters " L S" inclosed in brackets immediately after is sufficient. Morgenson v Middlesex Mi N, etc, Co, n Colo179 5 Hammond v Bovee, 4 Colo App 269; Morgenson v Middlesex Mi N, etc, Co, ii Colo176 Inferior Tribunal S Where the law extends a bill of exceptions to inferior tribunals to which the remedy did not attach at common law, as to courts of justices of the peace, no seal is re- quired to authenticate it unless the law requires the justice of the peace to have a sea L Stager v Harrington, 27 Ka N 420 By Each Judg e The bill must be sealed by each judicial officer required to sign it.

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Montana Lum- ber, etc, Co Post Date: Tue, 29 Jul 2008 13:30:25 +0000
Each signature must be atteste d Pratt v Malcolm, 13 John S ( N Y)32 I Packet Transferring Bil L But the packet by which the bill of exceptions is transferred to the appellate court need not be under the clerk's seal to validate it. Harring v Barwick, 24 Ga 59- 6 Marshall Silver Mi N Co v Kirt- ley, 8 Colo, no; Floyd v Fountain, 17 Ala 700; Kenan v Starke, 6 Ala 7 Certification A BY JUDG e Where the statute does not require a certificate, the approval and signature of the bill is a cer- tification that all the material recitals preceding the judge's sig- nature are tru e 1 statutor Y Where required by statute the certificate must sub- stantially conform to the certificate prescribed by the statute, or the bill of exceptions will be disregarde d 2 1 Rhea v Crunk (Ind App, 1895), 39 N E Rep 879; McCormick Har- vesting Mac H Co v Gray, 114 Ind 340 And compare Kleinschmidt v Mc- Andrews, 117 U S 282 It is the signature of the judge which authenticates a bill, although a party is responsible for its sufficiency and certaint Y Williams v Daly, 33 111 App 454; Emerson v Clark, 3 111 489; Rogers v Hall, 4 111 5; Liver- pool, etc, In S Co v Sanders, 26 111 App 559; Chicago, etc, RCo v Yando, 26 111 App 601 By CONSENT A bill unauthenticated by the judge cannot be given validity by consent of counse L Coburn v Murray, 2 Me 336 By Cler K Nor can the clerk repair an omission in the certificate of the trial judge, even where parties stipu- late that he may do So Byrne z/ Clark, 31 111 App 651 By Whom Writte N It is immate- rial by whom the bill was written if cer- tified as the law require S Hill v Hagaman, 84 Ind 287; Williams v Pendleton, etc, Turnpike Co, 76 Ind 87 Or by whom the evidence was taken down at the tria L Bradway v Waddell, 95 Ind 170 Rule in Montana In Montana, how- ever, it is held that the certificate of the judge should show that he has set- tled the bil L Mere date and signa- ture are insufficient. Montana Lum- ber, etc, Co v Howard, 10 Mont 296 So a certificate at the end of a bill of exceptions reading, "Done and dated in court this twenty-seventh day of September, 1890 d M Durfee, Judge," was held insufficient.

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