Claggett v. Gray

| Iowa | Jun 15, 1855

Wright, C. J.

Tbe facts with,regard to tbe time of tbe signing, as stated in tbe bill of exceptions, are as follows; It appears conclusively that at tbe trial tbe appellant excepted to certain rulings, but did not reduce tbe same to writing. And after setting out tbe exceptions taken, tbe judge proceeds to state that be is “requested to note the objections of plaintiff’s (appellee’s) counsel as to tbe time of signing tbe same, being three or four weeks since the adjournment of tbe court; but it is proper to state that tbe bearing for tbe motion for a new trial, and the determination thereof, were among thé last acts of the court before its adjournment sine die ; that time was asked and granted by tbe court to prepare said bill of exceptions; that the cour left in a day or two thereafter, to bold tbe Louisa and Henry courts; and’that said bill was presented shortly after tbe return of said court.” He also states that there was considerable other evidence on tbe trial, not remembered by the court, than what is set out in tbe exceptions, but none of it, as be states, bearing upon tbe speeial contract relied upon, except tbe deposition of one witness, tbe substance of wbicb, on wbat would appear to be tbe main points in controversy, be gives.

With, these facts, in connection with an affidavit of appellant (wbicb we shall refer to hereafter), we are asked to give a construction to our statute- and, as far as possible, lay down some rule with regard to tbe point in controversy. Tbe Code provides as follows: “ Either party may except to any decision or opinion of tbe court. If for matter accruing during tbe trial, tbe exceptions must be taken and reduced to writing before tbe verdict is rendered, unless otherwise arranged by consent. And where a bill of exceptions is subsequently filed, such consent shall be presumed, unless tbe contrary is shpwn by tbe record.” Sec. 1805. “ Such exceptions must be in writing, but tbe court may allow such time as may be deemed reasonable, to settle and reduce tbe same to form.” Sec. 1806.

Tbe rules with regard to tbe time and manner of taking exceptions, are regulated by tbe laws of tbe different states, and tbe practice of courts under those statutes. There is, perhaps, no part of a record that becomes so important to tbe rights of parties in tbe appellate bearing. It is, therefore, just that when such exceptions are finally settled, both • parties should have an opportunity to be present. In view ■of such rights, and tbe importance of these exceptions, our Code primarily contemplates that they shall be taken and reduced to writing before tbe verdict is rendered. Tbe design of this is, that while tbe question is clear to tbe mind of tbe court — while tbe exact point ruled, and all tbe testimony bearing thereon is distinctly remembered — and tbe parties are present, tbe whole matter shall be settled. And in view of this fact, section 1806 of tbe Code provides that reasonable time shall be allowed to reduce tbe same to form, "We cannot believe that in tbe absence of an express agreement, or consent, it was designed that such time was to extend. beyond tbe adjournment of tbe court. In tbe absence of such agreement, has tbe judge any power to sign such exceptions after tbe final adjournment of tbe court? Our-opinion is, tbat be bas not. It bas been beld tbat a judgment, rendered after tbe last bour of the last day of tbe term, is coram non judice and void; and tbat it was erroneous to receive a verdict and render judgment, after tbe term bad expired. Davis v. Fish, 1 G. Greene, 407 ; Grable v. The State, 2 G. Greene, 559. And why ? Because there can be legally no court in existence after tbe time fixed' for its ad.journment. During vacation tbe law bas wisely given to -the judge certain powers, such as granting writs of habeas corpus, and matters of' tbat kind. But this be does as solo judge^i and not as a court, or possessed of any of the usual attribrites or powers of a court. Does not our statute con-templdte tbe settling of these bills of exceptions, as being a judicial act, a material something tbat pertains to a cause-pending in court, and, as such,, must be done in term time,, as much so as tbat tbe judgment should be so rendered ?: Tbe very character- of these papers — their vital importance to parties litigant above suggested — that absence of the grant of pqw'er by tbe Code to settle them after tbe adjournment — ■ tbe door that, by extending tbe time, would be opened to-fraud and mistake — would seem to-be conclusive on this subject. We would not, however, say tbat such exceptions, might not be so settled, and reduced to form, by agreement. ■We would bold that such consent would confer tbe power,, and to this extent, tbe analogy ceases between tbe exercise of this power and tbat of rendering a judgment ;■ but as to. such consent or agreement, we would lay down these rules :•

Where tbe bill of exceptions is silent as to when it was. settled, we will presume tbat it was taken in. term time .regularly, or so settled by agreement, without''any reference to tbe time of tbe filing.

Where such consent appears, either by tbe bill or agreement, or is not denied here by tbe appellee, we will consider-it reduced to form, and made part of tbe record within tbe time contemplated by law.

Where it appears to have been taken in vacation, and snob assent is not shown in one of the methods above stated* and objection is made in.ibis court, we shall strike the bill from the record.

By a salutary rule of this court, no agreement will be recognized where controversy arises, unless reduced to writing. For this reason it is, that the consent above spoken of should be shown by writing.

In the case before us, the consent of the parties to settle this bill of exceptions in vacation, does not appear. It not only does not appear affirmatively, but is in terms negatived. It is true .that the court granted time to prepare the exceptions, but it is not shown that the opposite party consented. At the time of preparing the bill, some three or four weeks after the adjournment, the appellee did object, and 'this is all that is shown as to any action of his in the premises. Under the rules above laid down, such consent is negatived. An affidavit, however, has been filed, to show that such consent was given. We do pot think it will do to admit affidavits on such questions in this court. If we admit one to contradict or explain the record, we may any number, and thus perpetually have issues made, which are not contemplated in an appellate tribunal. We must go to the record from the court below, where controversy arises, and this is the only safe rule. This rule may operate badly in the case at bar; and if, in the enforcement of a rule that must be general, we could fairly exempt this case from its operation, we should be inclined so to do. If, however, the motion is still insisted on, it must prevail.