8 Cow. 746 | Court for the Trial of Impeachments and Correction of Errors | 1826
delivered the opinion of the court. This is a motion for leave to withdraw the assignment of errors, with a view to allege diminution, and pray a certiorari to the supreme court, to certify to this court the bill of exceptions supposed to remain in that court.
Opposition is made to the motion, on grounds that well deberve the consideration of the court. The objection of the rnosi serious aspect is, the deferred period of the application. 'The cause has been heard, and the court has taken time to make up an opinion upon it. The difficulty which occasions the present application, was made at the hearing; but the party whom it affected took no step to remove it; and now, when he finds it an insuperable bar to his relief, he applies to the court to delay its judgment, for the purpose of giving him an opportunity to obviate it by bringing up the record, which ought to have been sent in the first instance. These objections would probably have been conclusive, if the decision of this court had been upon the merits. If the record had been such as to enable us to consider the points adjudicated by the supreme court, and intended to be reviewed, though the case might have been defectively or partially presented, and the question have come up disadvantageously to one of the parties, the court
Objections.
Delay.
It is said that the party acted at his peril, in bringing up an improper record, and ought to be concluded by the act; but the difficulty is, that he has not brought up an imperfect or defective record of a bill of exceptions. He has brought up no bill of exceptions at all; but the cáse itself, which was to be turned into a bill of exceptions. It may
It is objected that this court cannot, in the sound exercise of its discretion, take that course; and authorities are cited, to show that similar applications have been refused by óther courts of appellate jurisdiction. I have seen no authority going to deny the power of the court to grant the motion, and the jurisdiction must be admitted. It is a question of sound discretion: and I cannot persuade myself that we should act more discreetly, by rendering a judgment without examining the merits of the case, than to put the cause in a course to enable us .to adjudicate upon its merits; nor do I think the defendant in error has any right to insist on a judgment. I attach no greater importance to his right to judgment on this record, than I should to the claim of a party to the judgment of the court against his adversary, because the suit was wrongly entitled, or some trivial error had crept in the record. He has a right
Want of pow-court.™ tWS
The question dis*
OsgoodManhattan Go. l Cowen, 65, 3 id. 612.
History of ífom^Cham ceilor, so far the practice of the court of
Courtof ors allowed assignment of wítMrawn hi order to the low, to be Drought up by certiorari.
That case is a precedent for the one now before us; and it shows that another objection made to this application, that there is no bill of exceptions in the court below to be sent up, is of no avail. There was no record in that case with the continuances upon it; and the party was obliged to apply to the supreme court for leave to file one nunc pro tunc. So in the common case of the want of an original alleged for dimunition, it is the constant practice the supreme court, after error Drought and dimunition alleged, to order an original writ to be filed nunc pro tunc, and then to certify that writ to the court above, upon the certiorari.
Sup. court alwrit to be°filed after ^ts is assigned for certify"* 1 it^on certiorari.
The same course may be taken in this cause. If the case has not been yet turned into a bill of exceptions or
^ taraPUaacá°e into a bill of special ^ verdict wiIj b® en[orced . by the court.
I cannot take notice of the suggestion that no exception was taken at the trial. The written stipulation admits that exceptions were taken; and the party cannot be allowed to make an averment in contradiction to his own admission. Mor can I admit the force of the objection arising from the difficulty of forming a special verdict or bill of exceptions. The parties have agreed that the case shall be turned into a special verdict or bill of exceptions, and they must abide by their agreement. It is too late to object that they might have gone to the jury on the questions of fact. They have waived the right to do so. If that objection could avail, it would apply to every case where a verdict is taken by consent, subject to a case. But the objection cannot prevail. The parties must abide by their stipulation. There may be difficulty in making up the special verdict or adjusting the bill of exceptions ; but the court, if the case is to be turned into a special verdiet must perform the duty of the jury, and settle the facts for the parties, if they disagree; and if the case is to be turned into a bill of exceptions, the circuit judge must, in like manner, in case of the disagreement of the , . . , . state the evidence, the points made by the parties, and his opinion upon them.
in making uj ¿¡¿stpefJomverá case, the court fac¿s to be ™und b-7 ,lf agree:
^ ** turned a.bi11 of exceptions, the circuit judge mUBt aettle lt-
Rule. “ That the plaintiffs have leave to withdaw the assignment filed in this cause, on payment of costs.”
But the decision of this motion would doubtless have been different, if the party applying had labored under no mistake of practice. This appears by the following case in the Exchequer Chamber in England, by whose practice our court of errors expressly govern themselves, in all cases where their own rules are silent.
In the Exchequer Chamber, Trim Term, 1822.
Duíoh v. Dob, dem. Parker, 1 Bing. Rep. 17.
At the trial of this cause, a bill of exceptions had been tendered; but a verdict having been found for the defendant in error, he entered up judgmen* *erm succeeding the trial. The plaintiff in error immediately renioved the cause into this court, by writ of error; but could not agree with the defendant in error as to the terms of the bill of exceptions, so that the iu^e’s signature had never been obtained; and now, when a year had elaPse|l since the commencement of the suit in error, when the common aasignment of errors had been made, and issue joined thereon,
If a party who at the trial of tendered a bill of exceptions, brings a writ he^asr rocur6 ed thefudgeJs signature to the bill, the Ing^aMe* ^to agree on its terms, he thereby waives the bill of exceptions, and will _ not be the^ourt of error, after-
", Tamton, who opposed the rule, pointed out the delay which a plaintiff in error might occasion, ií¡ after lying by for a 12 month, be could succee^ *n aucil an application. He contended that the court had no jurisdicti°n to cause any thing extraneous to be appended to the writ of error; and
The court thought the plaintiff in error had waived his bill of exceptions. by bringing a writ of error before the bill of exceptions was signed; and that they had no authority to take the step which the plaintiff in error proposed, Chitty, therefore,
Took nothing by his motion.