7 Mo. 250 | Mo. | 1841
Opinion of the Court by
This was a suit commenced by Jenkins against Lideil, in the circuit court, in which judgment was rendered for Jenkins.
Jenkins moved the court to strike from “ the record in this cause a bill of exceptions signed by the court for the garnishees, Robert Barbour and Joseph Consaul, as irregularly signed and made a port of the record. This motion was overruled by the court, and the decision of the court overriding such motion was excepted to.
The judge of the circuit court has made a statement of the case, of which a copy will be taken, as better calculated to explain the case than any statement that I, perhaps, could make ; it, is as follows :
The act regulating practice at law, provides that. “ whenever in the progress of any trial in any civil suit depending in any court of record, cither party shall except to the opinion oí the court, and shall write his exception, and pray the court to sign the same, the person or persons composing the court, or the major pari of them, shall, if such bill be true, sign the same ; and if they refuse to sign the same on account that it is untrue, they shall certify thereon, under, their hands, the cause of such refusal.” See 20th ’eciion of 4th article, page 484, of die digest of 1835.
This section evidently contemplates the exception being taken during the trial of the cause, and signed by the court during such tried, or at least that the exceptions should be allowed during the tiial. The 22d section of the same article contains the only intimation of a case in which time is given ; that is, when the judges shall have refused to permit any bill of exceptions, signed by by-standers, to be filed, and shall have certified that it is untrue, either party is allowed five days to take affidavits in relation to its truth.
This is the construction given to the English statute, where confessedly the statute fixes no time. But our statute indicates in the strongest terms, that the exceptions shall be reduced to writing, and signed during the trial..
But it is said that it is a hard case that the party should, by the ac.t of the law for which he is in no way accountable, lose his right. To this, then, there is an obvious answer, that this court may, when the law permits, give it that construction which is best calculated to advance the interest of parties. But here the parties have taken a liberty in which even the English law, much less strictly worded than ours, was not, as has been shown, construed to indulge suitors, and now they'seem to expect to be aided by judicial legis-legislation. Whenever, in the progress of any trial, (says
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Grant that never a dishonest man was sworn in a cpurt house, and that all suitors are too honest to tamper with witnesses; and moreover grant that all witnesses are too wise and too honest to suffer themselves to be tampered with, still tliis court has no authority to substitute such evi-eence for that required by. the law. And whence, it may be demanded, does the clerk of the circuit court, or any other officer, derive his authority to administer an oath to a witness to re-state what he.had before sworn to on the trial of the cause. The whole business was, in niy opinion, ’coram non judici, and, consequently, there can be no bill of exceptions in the cause. The motion, then, to strike out the bill of exceptions, is sustained.
As the judge below signed the bill of exceptions under such circumstances as would have prevented this court from compelling him to do so by mandamus, I concur in sustaining the motion to strike the bill of exceptions from the record. See 3d Cowan, 32.