40 F. 745 | U.S. Circuit Court for the District of Massachusetts | 1889
The question now before the court is whether a bill of exceptions can be allowed in this case. A verdict was rendered for the
The counsel for the plaintiff raises the further objection to the allowance of any bill of exceptions in this case, that a bill of exceptions cannot be signed after the term at which the trial took place, except with the consent of counsel, or the express order of the court, and that in the present case more than one term has elapsed since the trial. After a careful examination of the cases referred to by counsel, I conceive the rule to be this, — that a bill of exceptions must be signed at the term in which judgment was rendered. This rule is subject to certain exceptions, dependent upon special circumstances, which, however, it is not necessary to consider in this case. I admit that the expression is sometimes used, “at the term the trial was had,” as distinguished from the phrase, “at the term judgment was rendered.” The true rule, however, is stated by Chief Justice Waite, in Muller v. Ehlers, 91 U. S. 249, in the following language:
“As early as Walton v. U.S., 9 Wheat. 651, the power to reduce exceptions taken at the trial to form, and to have them signed and filed, was, under ordinary circumstances, confined to a time not later than the term at which the judgment was rendered. This, we think, is the true rule, and one to which there should be no exceptions, without an express order of the court during the term, or consent of the parties, save under very extraordinary circumstances.”
In the present case the motion for a new trial was not finally disposed of until October 12, 1889, and no judgment has as yet been entered upon the verdict. As soon as the motion for a new' trial w;as overruled the defendants’ counsel asked to have their bill of exceptions allowed. The