City of Denver v. Capelli

3 Colo. 236 | Colo. | 1877

Thatcher, C. J.

Actus curia neminem gravabit is a legal maxim, which, says Judge Cresswell, !£ is founded on justice and good sense; and affords a safe and certain guide for the administration of the law.” Freeman v. Tranah, 74 E. C. L. R. 415. In the case before us it applies with peculiar force. The bill of exceptions was tendered to'the judge within the time fixed by the.order of court, but was not signed by the judge within that time. “ The act of the court or judge shall not, in law, prejudice or vitiate the well-intended act of the party.” For the purpose of facilitating the settling of the bill of exceptions, the judge, by the consent of both parties, as appears by fair inference, permitted it to be withdrawn. Whether the judge should have allowed the bill of exceptions to be taken away after it was duly tendered is not a material inquiry. The fact is, that he did permit it, and delay was occasioned thereby. .To this delay the defendant in error contributed, and cannot now be heard to complain. Underwood v. Hossack, 40 Ill. 98, is an authority for saying that where a party has tendered his bill of exceptions to the judge in apt time, under the order of court, he has so far complied with the rule as not to be prejudiced by the failure of the judge to actually sign the bill, within the time prescribed. See, also., Powell on Appellate Proceedings, 419; and Lane v. Robinson, 40 Ga. 467.

While the better practice doubtless requires that the supplemental transcript should contain the bill of exceptions only, as that alone has been expunged, we will not on that account, in this instance, deny the motion, but will direct the clerk to strike out of the amended transcript all but the bill of exceptions. *

Motion allowed.