Laws

Thornton, 83Cal83; Hyde v Boyle Post Date: Tue, 29 Jul 2008 18:07:18 +0000
Shepherd v Brenton, 15 Iowa 84 Where Required by Statut e Where a statute provided that if the exceptant did not acquiesce in the corrections made by the judge in the bill of ex- ceptions proposed, the judge should himself make out, file, and sign a bill he deemed correct, it was held that a bill approved only with modifica- tions indorsed thereon by the judge was a substantial compliance with the statute, where exceptant failed to de- mand a bill and except to its refusa L Johnson v Lyford (Tex Civ App,, 1894), 29 S W Rep 57 2 Hyde v Thornton, 83Cal83; Gunderson it. Sirborn, 31 111 App 612; People z/Anthony,25 111 App 532 3 Hyde i. Thornton, 83Cal83; Hyde v Boyle, 86Cal352 Where the court to which an appeal is taken is vested by statute with power to settle a bill of exceptions, it cannot act unless the trial judge improperly refuses to settle any bill, or one in accordance with the fact S Gallardo v Atlantic, etc, Te L Co, 49Cal510 See Remedy for Refusal to Settle and Sign, infr A On Death of Judg e Where a stat- ute authorizes an appellate court to direct how a bill shall be settled on the death or disability of the trial judge, that tribunal cannot determine whether the applicant is entitled to a bill or not; but it is the duty, not the discretion, of the court to direct some manner of settlement.

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Rule in Nebraska Post Date: Tue, 29 Jul 2008 17:51:09 +0000
Severson v Milwaukee Mechanics' Mut In S Co ( S Dak, 1892), 53 N W Rep 860 4 Landers v Lawler, 84Cal547 the adverse party for his examination and suggestion of amend- ment S 1 Failure to Serve WaiveRWhere the bill is not served upon the opposite party within the time required by law, the judge cannot legally sign the bill over his objectio N 2 But the defect may be 1 Arizona Snead v Tietjen (Ari- zona, 1890), 24 Pac Rep 325 Florida Dibble v Truluck, 11 Fla Montana McKay v Montana Union RCo, 13 Mont 15 Nebraska Madsen v Norfolk Mill Co, 15 Neb 645; Uhling v Schellen- ber g 12 Neb 609; Howard v La- master, 13 Neb 221 Texa S Franklin v Tiernan, 62 Tex 96; Firebaugh v Ward, 51 Tex 415 Wisconsi N Bonesteel v Bonesteel, 30 Wi S 152 Before Signatur e And of course the bill must be served before the trial judge has acted thereon and attached his signatur e Madsen v Norfolk Mill Co, 15 Neb 645 Dismissal of Appea L In Georgia, where the bill of exceptions is not served on the adverse party within the time required by law, the appeal or writ of error will be dismisse d Har- per v Burks, 74 Ga 412; Phillips v McNeice, 50 Ga 358 The general rule requires a motion to strike out. See A Generally Motion to Strike Out, infra . Rule in Nebraska In Nebraska it was held, construing sections 308 and 311 of Code Civ Pro (1877), that the statute allowed the exceptant fifteen days from the rising of the court in which to prepare and submit theB'll of exceptions to the opposite part Y The draft must contai'n all the excep- tions taken upon which the party relie S If the exceptant desires longer time, the court may extend it by order, not to exceed forty days from the rising of the court.

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Meeksback, 6 Ohio CiRCt Post Date: Tue, 29 Jul 2008 17:35:27 +0000
Within ten days from the time then fixed it must be returned to the exceptant, with the proposed amendments, if an Y Within ten days thereafter the except- ant must present the bill to the judge for his approval and signatur e By code, section 311, the time to submit may be extended to eighty day S State v Gaslin, 25 Neb 71; Omaha First Nat Bank i: Bartlett, 8 Neb 319; McDonald v McAllister, 32 Neb 514 After Deathof Appelle e Where the bill is signed after the death of the appel- lee it was held, in Michigan, that notice of settlement must be given to his personal representative S When not given, an order may be filed to show cause why an opportunity should not be given to suggest amendment S Van Valkenburg v Rogers, 17 Mich 322 2 Nebraska Birdsall v CarTer 16 Neb 422; Greenwood v Craig, 27 Neb 669; Seward v Klenk, 27 Neb 615; Atkins v Atkins, 13 Neb 271 Wisconsi N Estabrook v Messer- smith, 18 Wi S 545 United State S Waldron v Wal- dron ( U S, 1895), 15 Su P Ct Rep 387 When and Where Objection Mad e An objection that the bill of exceptions was not submitted to the adverse party before settlement should be made be- fore the trial judg e If the adverse party did not know that the bill was in the judge's hands until aftersignature, he might raise the question by motion filed at the term at which the bill was entered to strike out such entry, or, if not then discovered, at a subsequent ter M If the entry is stricken out the bill of exceptions falls with it. Sedam v Meeksback, 6 Ohio Ci R Ct Rep 219 Record Entr Y The record entry of the allowance of the bill should prop- erly show the due presentation to counsel and court, although this is not essential to the validity of the hill, as it will be presumed where the allowance appear S Sedam v Meeks- back, 6 Ohio CiRCt Rep 219 See, What Record must Show, infr A The record entry of the allowance raises the presumption that the pre- liminaries thereto had been complied with, unless the contrary is show N Sedam v Meeksback, 6 Ohio CiRCt Rep 219 Failure to Present Bil L In Ohio the view is taken that failure to present the bill to the opposite partydoes not affect its validity if duly signed, unless the presentation is required by statut e If so, the statute must complied wit H Sedam T'. Meeksback, 6 Ohio CiRCt Rep 219 5 Notice of Settlement.

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Or by proposing amendments without Post Date: Tue, 29 Jul 2008 17:23:30 +0000
A notice of the time and place of the settlement of the bill of exceptions must be duly served upon the adverse partie S 2 6 Upon Whom Service must be Made A GENERALL Y All the appellees or defendants in error who have a substantial interest in the maintenance of the judgment are generally required to be 1 Omaha, etc, RCo v Redick, 14 Neb 55; Cheney v Cooper, 14 Neb 414; Smith v Kaiser, 17 Neb 184 By Indorsement. As by his indorse- ment of the bill as corre Ct Omaha N RCo v Redick, 14 Neb 55; Cheney v Cooper, 14 Neb 414; Smith v Kaiser, 17 Neb 184 By Amendment. Or by proposing amendments without objectio N Oma- ha, etc, RCo v Redick, 14 Neb By Failure to Propose Amendment S Where the appellee fails to propose amendments to the bill, or where those proposed by him are allowed by the exceptant, notice of the presentation to the trial judge is waive d Sherwin v O'Connor, 23 Neb 221; Denver First Nat Bank -v Lowrey, 36 Neb 290 Erroneous Clai M Or where the bill is properly served upon the adverse party, but returned by him on the er- roneous claim that it was not served in ti Me State v Gaslin, 25 Neb 71 California Where the defendant in a criminal case relies upon a waiver of the two days' notice of the presenta- tion of a bill of exceptions for settle- ment, required byCalPenal Code, 1171, such waiver should be made of record or in writing, and not left to the uncertainty of human memor Y People v Hill, 78Cal405 Default of Appelle e Where the ad- verse party holds the bill until the time for the judge to sign has elapsed, the exceptant does not lose his bill, but the judge may sign thereafter, and the appellee is estopped from raising the objectio N Fitzgerald v Rollings- worth, 13 Neb 199; Deck v Smith, 12 Neb 206 After Signatur e Where service of the bill on the adverse party after sig- nature is required, the record must affirmatively show that service was made after the bill was duly signe d Bush v Keaton, 65 Ga 296 2 California Williard v Diliard, 86Cal157 New Hampshire State v Lord, 5 N H 336 New York McGregor v Cleve- land, 3 Wen d ( N Y) 312; Shipherd v White, 3 Co W ( N Y) 32; Marsh v Rulifson, 7 Co W ( N Y) 102 Montana McKay v Montana Union RCo, 13 Mont 15 Wisconsi N Dernier v Durand, 15 Wi S 580 Object of Notic e The object of the notice is not to initiate a new pro- ceeding or preserve a right to the mov- ing party, but to enable the adverse party to be present and be hear d Williard v Diliard, 86Cal156 Effect of Lack of Notic e Where such notice is not given, the evidence con- tained in the bill may be stricken out upon motion in the appellate court.

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Otherwise the different attorneys repre- Post Date: Tue, 29 Jul 2008 17:11:55 +0000
McKay v Montana Union RCo, 13 Mont 15 Kansa S In McClure v Gulf RCo, 9 Ka N 380, it was held, however, that a judge of a court may sign and al- low a bill of exceptions for one party without notice, and in the absence of the adverse party; but that such a power should be exercised with ex- treme caution, and only in rare case S Where Formal Notice Waive d A stip- ulation of the parties that a bill of exceptions shall be settled at a defi- nite time is equivalent to notice, and it cannot afterwards be objected that due notice was not give N Yule v Ely, 21 Wi S 326; Seattle v Buzby, 2 Wash Ter 33 So a written notice of settlement re- quired by statute is waived by consent of the attorney for the appellee in open court that he would be present at the date fixed on by the judge forsettle- ment. Hicks v Masten, 101Cal651 Where Settled on Tria L When a bill of exceptions is settled during the trial, notice of settlement is not re- quired, as the adverse party has an opportunity to know of its settlement without such notic e McKay v Mon- tana Union RCo, 13 Mont 15 served with the signed bill of exception S 1 Merely nominal par- ties need not be serve d 2 b SEVERAL APPELLEE S Where there are several appellees or defendants in errr, service of the bill must be made upon al L 3 Where all are represented by the same attorney of record, service upon him is sufficient. Otherwise the different attorneys repre- senting the different appellees must be separately serve d 4 C REFUSAL OF SETTLEMENT FOR LACK OF SERVIC e But the trial judge cannot refuse to settle a bill of exceptions on the ground that it has not been served on the proper partie S 5 The parties upon whom the proposed bill was served should be stated in the certificate of settlement, 6 and the question of the suffi- ciency of service left to the appellate court on review of the appea L 7 1 Anderson v Faw, 79 Ga 558; Allen -v Cravens, 68 Ga 554; Craig v Webb, 70 Ga 188; Williams v Jones, 69 Ga 757; Price v Lathrop, 66 Ga 247; McNulty v Pruden, 62 Ga 135; Fouche v Harison, 78 Ga 359; Hud- son v Board of Education, 62 Ga 165 "Adverse Partie S" "Adverse par- ties," within the meaning of statutes requiring service of bills of excep- tions on such, include those only who will be affected by the reversal or modification of the judgment appealed fro M Gutierrez v Hebbard (Ca L, I 895), 39 Pac Rep 529; Miller v Thomas, 71Cal406 So, on appeal from a final decree in partition affecting only a portion of adverse parties, only those affected need be serve d Gutierrez v Heb- bard (Ca L, 1895), 39 Pac Rep 529 Additional Partie S Service need not be made on additional plaintiffs sup- plied from the recor d Sharp z/ Findley, 71 Ga 655 2 Allen v Cravens, 68 Ga 554 WaiveRNecessary parties who have not been properly served may appear by themselves or bycounsel, ac- knowledge or waive service, be heard, and proceed with the cas e Craig v Webb, 70 Ga 188 On Prosecuting Attorne Y In a crim- inal case service must be made on the official prosecuting attorne Y The as- sistant counsel is not authorized to ac- cept it.

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Anderson S Faw, 79 Post Date: Tue, 29 Jul 2008 16:57:06 +0000
Oliver v State, 66 Ga 243; McColers v State, 74 Ga 411; Hackey v State, 15 Ga 400 3 Allen v Cravens, 68 Ga 554; Curey v Hitch, 57 Ga 197; Brantley v Brookins, 74 Ga 843; State v Bridges, 64 Ga 147; Smith v Eckles, 65 Ga 326 4 Allen v Cravens, 68 Ga 554; Weatherly v Mimms, 63 Ga 161 Counsel Withdraw N Service of a bill of exceptions on counsel who pro- cured the decision appealed from is sufficient, although they may have ceased to represent the exceptant in the appellate court. Clark v Pigeon Roost M^ N Co, 29 Ga 29 On Attorney as Appelle e Where one of the appellees is also a member of the firm of such attorneys of record, an acknowledgment and waiver of further service signed by him as individual is insufficient. Anderson S Faw, 79 Ga 558 Kule in Nebraska Where there is no such diversity of interest between the appellees as to make them in effect separate appellees, it is held in Ne- braska that the service of the bill upon the principal joint defendants is suffi- cient.

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Ransom, 45 Ga 316 Post Date: Tue, 29 Jul 2008 16:44:56 +0000
Crane Bro S Mfg Co v Keck, 35 Neb 684 But a mere notice to several ap- pellees that the bill will be left at the office of one of them for examination until the expiration of the statutory time, is not a good submission as to the reSt Fitzgerald v Brandt, 36 Neb 683 5 Gutierrez v Hebbard (Ca L, 1895), 39 Pac Rep 529 6 Gutierrez v Hebbard (Ca L, 1895), 39 Pac Rep 529 7 Gutierrez v Hebbard (Ca L, 1895), 39 Pac Rep 529 Excusable Dela Y Where the appel- lant claims excusable delay in answer to an objection of the appellee, made at the time of settlement, that the bill was presented too late, he should em- body in the bill the matter constitut- ing the excus e Higgins v Mahoney, 50Cal446 7 Proof of Servic e Proper service may be shown by an ac- knowledgment on behalf of the appellee, or an affidavit of service from the appellant. 1 8 Who must Determine Contents a, GENERALL Y The ultimate decision as to what the bill of exceptions should contain rests with the trial judg e 2 His decision is a judicial act, and cannot 1 Westfield v Toccoa, 80 Ga 735; Wostenholmes v State, 71 Ga 669 Evidence of Servic e The evidence of service must appear indorsed in the bill of exceptions, Arnett v Gurley, 59 Ga 666; Akerman v Neel, 70 Ga 728; or be annexed thereto, Akerman v Neel, 70 Ga 728 It cannot be shown by evidence outside the recor d Ar- nett v Gurley, 59 Ga 666; Colemanz'. Ransom, 45 Ga 316 By Sheriff Where served by the sheriff his official entry is sufficient evidence of service, and may be made, otherwise than in the case of a party or his attorney, either before or after filin g Head v Bridges, 72 Ga 30 By Whom Mad e Service of the bill may be made by the exceptarft, his at- torney, or any other person where properly shown by affidavit, Walter v Kierstead, 74 Ga 18; unless the statute confines service to certain spec- ified persons, when none other can perform it than those so named, Hen- derson v Henderson, 7 Ga 421 By Statut e The service must be in some one of the ways pointed out by statut e A return non esf inventus by the sheriff as to one appellee, and ser- vice on the other by substitution, is not valid unless authorized by statut e Traynham v Brown, 74 Ga 410 Plural Defendant S An indorsement of service of a bill of exceptions on the "defendant" is not sufficient to show service on the defendants where there were more than on e Curey v Hitch, 57 Ga 197; Allen v Cravens, 68 Ga So, where it was acknowledged by counsel for one defendant only as "for the defendant" it was held in- valid as an acknowledgment for the other S Allen v Cravens, 68 Ga 554 An acknowledgment by counsel "for respondents" was held evidence of service on al L State v Bridges, 64 Ga 146 After Filin g It was held in Finney v Hood, 72 Ga 216, that an acknowl- edgment of service indorsed on the bill after it was filed in the office of the clerk was too late to validate it.

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Westfield v Toccoa, 80 Post Date: Tue, 29 Jul 2008 16:33:14 +0000
To the same effect, Thomas v Rep- hard, 74 Ga 410; Plummer v Moore, 63 Ga 626 It constitutes an illegal alteratio N Darby v Wesleyan Fe- male College, 72 Ga 212 But the defect maybe waived by the appellee by failure to make a motion to dismiss on that ground before joinder in erroRCecil v Gazan, 71 Ga 632 Attorneyship must Appear of Recor d It must appear in the acknowledg- ment or elsewhere on the record that the attorneys who sign for the de- fendant are his attorneys of recor d Weatherly v Mimms, 63 Ga 161 Ti Me Where the service is made in time the affidavit of service need not be necessarily made until after its ex- piratio N Cain v Ligor, 76 Ga 102 Statement. A mere statement on the bill by the appellant or his counsel that a copy of the bill was served is wholly insufficient. Westfield v Toccoa, 80 Ga 735; Wostenholmes v State, 71 Ga 669, overruling Montgomery v, Walker, 41 Ga 681 Sunda Y Where the last day of ser- vice falls on Sunday, service on Mon- day is sufficient.

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Beavers v State, 58 Ind Post Date: Tue, 29 Jul 2008 16:22:45 +0000
Harris v Atlanta, 62 Ga 290 2 State v Noggle, 13 Wi S 380; Ex p Bradstreet, 4 Pet (U S) 102; Jamison v Reid, 2 Greene (Iowa) 394 The verdict or finding of the jury cannot be resorted to to contradict the judge's decisio N State v Noggle, 13 Wi S 380 Extent of PoweRSo a trial judge may at discretion correct a bill of ex- ceptions, even where the attorneys for both parties agree to its accurac Y Beavers v State, 58 Ind 530 He may properly refuse to allow matters to be incorporated in the bill not affecting points excepted t O Peo- ple v Goldenson, 76Cal328 Nebraska Where the clerk settles the bill, under Code Civ Pro Neb, 311, when all the parties in interest agree upon a bill and attach a written stipulation thereto, the clerk exercises Ti Me The bill must accordingly be tendered to the trial judge within the time fixed by the statut e 2 Acceptance of Amendment S Where the exceptant accepts the amend- ments proposed by the appellee, he adopts them as his ow N 3 But the trial judge is not obliged to settle and sign the bill because no objection is made to its contents by the adverse part Y 4 b, EXAMINATION BY TRIAL JUDG e He must examine the bill and exercise an independent judgment as to whether the bill con- tains a truthful account of the events of the tria L 5 If not, he no judicial function, and if the consent of any party be lacking he cannot set- tle it. It is otherwise with the judge, as the presentation of the bill to a principal adverse party is suffi- cient compliance with the statute to authorize the presiding judge to settle the bill, even though all the adverse parties have not been served therewit H Reynolds v Dietz,3g Neb 180; Crane Bro S Mfg Co v Keck, 35 Neb 683 1 Illinoi S People v Anthony, 129 111 222; Hake v Strubel, 121 111 321; Emerson v Clark, 3 111 489; Culli- ner v Nash, 76 111 515 Indiana Seymour Woollen Fac- tory Co v Brodhecker, 130 Ind 389; Toledo, etc, RCo v Rogers, 48 Ind 429; McCoy v Able, 131 Ind 417 West VirginiaPoteet v Cabell County, 30 W Va 58 Where not Settle d Where no bill of exceptions has been settled in the trial court, the appellate court will not re- gard exceptions filed in the clerk's office belo W Merwins v O'Day, 9 Wi S 156 2 Tufts v Newton, 119 Mas S 476; Borstow v Marsh, 4 Gray (Mas S) 165; Sawyer v Yale Ironworks, 116 Mas S 424; Co M v Greenlaw, 119 Mas S 208; Phillips v Soule, 6 Allen (Mas S) 150 See Time for Settlement and Signature, infr A In Nebraska a bill of exceptions will not be dismissed for failure to present it to the trial judge for his set- tlement and allowance within ten days from its return by the opposite party to the party seeking the allowance of the bill unless it shall appear that the bill was not presented to such judge within fifteen days, or such ad- ditional time, not exceeding forty days from the adjournment of "the court sine die, as might have been allowed by the court, and twenty days addi- tional, making, in a case of full exten- sion of the time allowed for the com- pletion of the bill, sixty days in al L Sherwin v O'Connor, 23 Neb 221 In California, where the case falls withinCalCode Civ Pro, 649, allowing a party to present a bill of exceptions for settlement in the case of appealable orders before final judg- ment at the time the ruling is made, a bill of exceptions should be settled and allowed if presented within a rea- sonable time after the order excepted to, and the analogy furnished by sec- tions 650 and 651 should determine what constitutes a reasonable ti Me Flagg v Puterbaugh, 98Cal134 3 Shepard v Hull, 42 Me 577 Estoppe L Where counsel for the ap- pellee accepts the bill as presented, he is estopped himself from claiming that it is unfaiRJones v State (Tex Cri M App, 1893), 23 S W Rep 793 4 Jones v State (Tex Cri M App, 1893), 23 S W Rep 794 Improper Bil L So a judge is not bound to sign a bill containing papers attached which should properly be in- corporate d State v Noggle, 16 Wi S 333- Nonappearanc e On the other hand, the nonappearance of a party at the time appointed for the allowance of exceptions taken by him does not re- lieve the trial judge from the duty of allowing a bill conformable to la W Thompson v Dickinson (Mas S, 1893), 34 N E Rep 262 5 Deur v Davison, 52 111 no; Toledo, etc, RCo v Rogers, 48 Ind 431; Stewart v Rankin, 39 Ind 161 By CONSENT He is not bound to sign a bill of exceptions prepared by the parties by consent, and may cor- rect it if he deems fit. Beavers v State, 58 Ind 530 Settlement and Allowance of a bill as C PROPOSALS OF CORRECTION S But he cannot refuse to settle the bill in the first instance because defectiv e 2 He must first propose corrections to the exceptant.

Autor of the post: Undefined

Where the bill as prepared Post Date: Tue, 29 Jul 2008 16:07:19 +0000
3 d DISAGREEMENT OF PARTIE S Where the parties do not agree, the trial judge must decide as to the proper contents of the bill, and proceed to settle and sign it accordingl Y 4 correct by the trial judge is essential to its validit Y Mere signature alone is insufficient. State v Pugh, 7 Ohio CiR Ct Rep 163; Hill v Bassett, 27 Ohio St 597; Burk v Pittsburg, etc, RCo, 26 Ohio St 643 Inclusion of Charg e So a trial judge may refuse to sign a bill giving part only of his general charge to the jury unless the remainder thereof is includ- ed, and the whole testimony upon which it was base d M'Callen v Ster- ling, 5 Yerg (Tenn) 223 1 State v Gunter, 30 La An N 536; State v Ladd, 10 La An N 271; State v Riculfi, 35 La An N 770; State v, Lazarus, 35 La An N 1190 2 Sansome v Myers, 80Cal483; Firebaugh v Ward, 51 Tex 415 Duty of Judg e In Firebaugh v Ward, 5 1 Tex 41 5, it was said, after com- menting on the right of the trial judge to refuse an incorrect bill: " If not agreed to, then it should be returned with the refusal of the judge indorsed thereon; and he should make out, sign, and file with the clerk such bill of ex- ceptions as will in his opinion present the ruling, opinion, or other action of the court as it actually occurre d" Jones v State (Tex Cri M App, 1893), 23 S W Rep 793, citing Lanier v Perryman, 59 Tex 109; Tyson v State, 14 Tex App 390 3 Sansome v Myers, 80Cal483 Practice on Proposal S Where the judge decides that the bill is not a cor- rect statement of the facts, he should return it to the exceptant within the time required by law, with his objec- tions in writin g Where the objec- tions are removed, he should state in his certificate the cause of the dela Y Preetorius v Barnes, 75 Ga 313 It is not proper for the judge, with- out resorting to this procedure, to in- sert the facts he deems omitted at the close of the usual certificate and be- fore his signatur e Preetorius v Barnes, 75 Ga 313 Ordering Correction S So a trial judge may order the excepting oarty to pre- sent in his exceptions such part of the testimony as may have a bearing on the pertinency and propriety of the exceptions taken, and they may be overruled as incomplete if the order is not complied wit H Harvey v Dodge, 73 Me 316; Lewis v Smart, 67 Me 207 Reasons of Trial Judg e The trial judge may incorporate his reasons for his rulings in the bill of exceptions as a qualification thereof Corsicana v Kerr, 75 Tex 207; Campion v Angier, 16 Tex 93 Compliance with Rules of Court. Where the bill as prepared does not conform to the rules of court the judge may return it, as where the folios are not numbered in the served copy, as required by rules of court.

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