Kaiser v. Wayne Circuit Judge

162 Mich. 247 | Mich. | 1910

Lead Opinion

Ostrander, J.

The action is trespass on the case. A verdict for the plaintiff was rendered October 12, 1909. On October 15, 1909, an order was made staying proceedings for 20 days, extending the time to move for a new trial 30 days, and the time to settle a bill of exceptions 60 days. November 5, 1909, judgment was entered on the verdict. Orders succeeded each other thereafter as follows : November 19, 1909, time to move for a new trial extended 20 days more; January 6, 1910, motion for a new trial denied; January 28, 1910, time to settle bill of exceptions extended 60 days; April 2, 1910, motion to set aside the order of January 28th denied; April ?, 1910, bill of exceptions settled as of April 2, 1910; April 9, 1910, motion to set aside order settling bill of exceptions denied. The order of January 28, 1910, was made without cause being shown and without notice. The question presented by the petition is whether that order should be vacated.

We held in Harper v. Wayne Circuit Judge, 155 Mich. 543 (119 N. W. 913), that the provisions of the stat*249ute regarding the settlement of a bill of exceptions were to be construed in connection with the rule of the court (Cir. Ct. Rule 47) and with 3 Comp. Laws, § 10504, and that by construction appellant had a reasonable time after the denial of a motion for a new trial in which to'settle a bill of exceptions, and had 20 days after such denial as matter of right. In that case an application for an extension of time was made within 20 days, was denied, and a writ of mandamus was issued to compel the entry of an order giving the appellant a reasonable time in which to settle the bill of exceptions.

In the case at bar, the order of October 15, 1909, allowing a 60-day extension of time in which to settle a bill of exceptions, expired January 3, 1910, if we reckon from the date of entry of the order. Reckoning from November 5th, the day when judgment was entered, the 60 days expired January 4, 1910, and the date when the further order extending time in which to settle bill of exceptions was entered was 84 days after judgment, and 22 days after the motion for a new trial was denied.

Following Harper v. Wayne Circuit Judge, supra, we hold, upon the facts stated, that appellant had a right to settle a bill of exceptions at any time within 20 days after the denial of the motion for a new trial, and that within that time the court below had jurisdiction, upon motion and upon cause shown, to extend reasonably the time to settle a bill of exceptions. The court had no jurisdiction within said 20 days to extend the time to settle a bill of exceptions, except upon notice and for cause. It had no jurisdiction after the expiration of said 20 days, and after the expiration of 80 days from entry of judgment, to extend the time to settle a bill of exceptions for .cause.

The rule of practice is this: A party has 20 days after judgment, as matter of right, in which to settle a bill of exceptions. The court may extend this time for 60 days. The court may make no other or further extension of time for settling a bill of exceptions in any case, except upon *250notice and cause shown. A party has 20 days after denial of motion for a new trial in which to settle a bill of exceptions; the motion for a new trial having been seasonably made and brought on for hearing in a reasonable time. Within said 20 days the court may, upon notice- and for cause, grant a reasonable extension of the time. Neither the statute nor the rule, nor any order of the-court made pursuant thereto, may operate to extend the-time limited by the statute in which to take out a writ of error.

The order of January 28, 1910, should be vacated, as-well as the order settling the bill of exceptions. Relator will recover costs of this motion of the Detroit United. Railway.

Writ granted.

Hooker, Moore, McAlvay, and Brooke, JJ., concurred.



Rehearing

ON MOTION EOR REHEARING.

Ostrander, J.

A rehearing is denied, for the reason that the order of the court below extending the time in. which to settle a bill of exceptions was properly set aside. But in so far as the opinion limits the right of the court to at any time entertain a motion, supported by affidavits, after due notice to opposing counsel, to extend the time for settling exceptions, we think it should be modified. We are impressed that, in view of some former decisions of the court, a rule upon this subject should be announced only in the form of a rule to take effect in the future.

The opinion, therefore, will be considered as deciding only the precise question presented by relator’s motion.

Hooker, Moore, McAlvay, and Brooke, JJ., concurred.