48 P. 424 | Or. | 1897
Opinion by
This is an original proceeding in this court, by mandamus, to compel the judge of the seventh judicial district to settle and sign a bill of exceptions in a criminal action. The facts, as shown by the alternative writ, answer, and accompanying affidavits, so far as material to any question before us, are, in substance, that on October 6, 1896, the petitioner was convicted in the Circuit Court for Sherman County of the crime of forgery, and on the following day sentenced to the penitentiary for the term of two years. During his trial numerous exceptions were taken to the rulings of the court, but they were not reduced to writing at the time, and his counsel asked for and were allowed thirty days after the term in which to prepare and tender a bill of exceptions, but they allowed it to expire without doing so. Thereafter, and on the 1st of December, 1896, what purports to be a bill of exceptions, a copy of which is annexed to and made a part of the petition was tendered to the trial judge, but he refused to settle or allow it, because, as stated in his answer to the alternative writ, “the plaintiff and petitioner herein and his attorneys, and each of them, had been guilty of carelessness, and that the court had no right to excuse such carelessness on the part of the attorneys in reference to the order of the court, as it would destroy the effect and power of the orders of the court, and place a premium on carelessness,” and “that the plaintiff and petitioner,
It is well settled that mandamus lies in a proper case to compel a trial judge to settle and sign a bill of exceptions, but not to direct him what to put in such bill where there is any controversy as to what it should contain: Elliott on Appellate Court Procedure, § 516; High on Extraordinary Remedies, § 200; 3 Enc. Pl. & Pr. 489; People v. Anthony, 129 Ill. 218 (21 N. E. 780); Jelley v. Roberts, 50 Ind. 1; State ex rel. v. Hawes, 43 Ohio St. 16 (1 N. E. 1). And in Che Gong v. Stearns, 16 Or. 219 (17 Pac. 871), it was held that this court, as an incident to and in aid of its appellate authority, had a right to exercise the power in a criminal case, although the bill was not presented or tendered to him within the term at which the trial was had nor within an extension of time allowed for that purpose, and this must be regarded as the settled law of the State. It follows, then, that the only question for our determination is whether the circumstances attending the case at bar call for its exercise, and upon this
The right of a trial court to limit the time for the settlement of a bill of exceptions is indispensable to the orderly administration of the law, and it is entirely proper that the appellant be required to tender his proposed bill within the time fixed, or give a sufficient excuse for not doing so. But, when a reasonable excuse is shown, the trial judge should not hesitate to settle and allow it, notwithstanding the expiration of the time. It would be a very rigorous doctrine to hold that an appellant should
Writ Denied.