40 Ill. 93 | Ill. | 1867
While we fully recognize the jurisdiction of this court to grant a writ of mandamus to compel a judge of an inferior court to sign a bill of exceptions, yet this is clearly not a case in which that jurisdiction can be properly invoked or exercised.
The return of the judge of the Superior Court states explicitly that he has already signed a bill of exceptions which he believes to contain a correct statement in relation to the disputed matter, and that the amended bill, which it is sought to compel him to sign and seal by this proceeding, does not state the facts as they occurred on the trial, and therefore he had refused to sign it.
We cannot look into the affidavits which have been presented, touching the facts in dispute, as it is the exclusive province of the judge to determine the correctness of a bill of exceptions which he is requested to sign. As was said in the case of The People v. Pearson, 2 Scam. 206, “ the law makes him, and properly so, the judge of the propriety and accuracy of the act he is called on to solemnly verify the truth of, so that it shall become a part of the record in the cause • it is not for other parties to determine the truth.”
This case is fully met by the case of Bradstreet, 4 Peters 102, in which Chief Justice Marshall says: “This is not a case in which a judge has refused to sign a bill of exceptions. The judge has signed such a bill as he thinks correct. If the court had granted a rule on the district judge to sign a bill of exceptions, the judge would have returned that he had performed that duty. But the object of the rule is to oblige the judge to sign a particular bill of exceptions, which has been offered to him. The court granted the rule to show cause, and the judge has shown cause by saying, that he has done all that can be required from him ; and the bill offered to him is not such a bill 'as he can sign. Nothing is more manifest than that the court cannot order him to sign such a bill of exceptions. The person who offers a bill of exceptions, ought to present such a one as the judge can sign. The course to be pursued, is either to endeavor to draw up a bill, by agreement, which the judge can sign, or to prepare a bill to which there will be no objections, and present it to the judge.”
This court, in The People v. Pearson, supra, cite that case approvingly, and proceed to say: “ The principles, however, settled in this case, seem to be that a mandamus will be allowed to cause a judge to sign a bill of exceptions, but that the judge must determine its accuracy, and whether it correctly recites the points made and opinions excepted to; that he must sign such a one as he believes to be correct, and none other; that he cannot refuse to sign a bill altogether, but must sign one if required in a case where there has been exceptions taken, provided it is applied for at the proper time.”
And the court further say: “In looking into the present case, it appears the judge has signed a bill of exceptions, but the party complains that he has not inserted certain portions of the deposition of the witness, which he excluded from being read on the trial, and to which order of the judge, excluding those portions, he took the exceptions.” “ Now, had the judge offered explanation of a satisfactory character why he could not sign the bill presented, with the excluded portion of the deposition, nothing would have been more certain than that this court would not compel him to sign a bill which he could not, in his judgment, properly do, in the correct and faithful discharge of his duties. Had he made a return to the writ and given this explanation, as in the case referred to in the Supreme Court of the United States, of Judge Coxcklix, we should have said he had done all that can be required of him.”
We fully approve the rule laid down in those cases, and must regard them as decisive of this application.
Mandamus refused.