Reichenbach v. Ruddach

121 Pa. 18 | Pa. | 1888

Opinion,

Mr. Justice Paxson :

A writ has been issued in this case in accordance with the provisions of the statute of Westminster, 13 Edw. 1, c. 31; Robert’s Dig. 92, to Hon. Craig Biddle, one of the judges of the Court of Common Pleas No. 1 for the county of Philadelphia, founded upon the complaint of the plaintiffs in error, that on the trial before him various exceptions were taken and alleged to certain of his rulings, and that he had refused to affix his seal to those exceptions, commanding him to affix his seal thereto. To tins writ Judge Biddle has filed an answer.

There is this marked difference between Haines v. Commonwealth, 99 Pa. 410, and the case in hand. In Haines v. Commonwealth no application was made to the judge to- seal the bill until nine months had passed, and then a paper was presented to be sealed which had not indorsed thereon any note signed by him to show that it had ever been presented. The judge then refused to seal the bill notwithstanding the district attorney assented to its correctness and was entirely willing it should be sealed. The learned judge refused to seal, because the bill was not settled according to rule, and in this he was legally right, this court holding .that the rules of court are as much for the protection of the court as for the parties. In the present case the bill was presented for settlement within the time prescribed by the rules of court, and it is manifest the learned judge refused to seal mainly, if not wholly, by reason of the objection made by counsel for the defendant in error, that he had not been served with a copy of the bill forty-eight hours before the time fixed for sealing. So far as the objection of counsel is concerned, if such objection is without merit, it is no reason why the learned judge should not seal a bill.

The trial of the case below occupied over three weeks. It is stated and not denied that the testimony, rulings, charge of the court, and exceptions embrace over fifteen hundred typewritten pages. As the Court of Common Pleas No. 1 had never employed a stenographer as authorized by statute, the parties to the suit employed Mr. Wilson, who was the official stenographer of the Orphans’ Court and register of wills, to take the testimony and charge of the court in the said case; it was agreed that three copies thereof be made, one for the court, one for counsel for plaintiff, and one for counsel for defendants. This was done, and within a day after the trial the court and the counsel were furnished with copies of the stenographer’s notes.

The bill was presented within ten days and was so marked by the judge. The rales of court bearing upon this case are as follows:

Sect. 35. In every case of a bill of exceptions, it shall be the duty of the party presenting the bill, within twenty days thereafter, to have the same settled by the judge, before whom the case was tried, on forty-eight hours’ notice, with a copy of the bill served on the opposite party; otherwise the judge shall not be required to seal the same.

Sect. 123. All notices shall be in writing.

Various interviews and negotiations took place between the respective counsel in regal’d to settling the bill. On March 11, 1887, the counsel for defendant in error addressed a note to the counsel for the plaintiffs in error saying: “ The testimony of Magistrate Collins is not included in the stenographer’s report. It should be in your bill of exceptions.” Just why it should be in the bill of exceptions does not appear. The exceptions do not refer to it. Notwithstanding this, the testimony referred to was immediately sent to the counsel for the defendant in error. During all these conferences and negotiations no reference was made to, or a demand for, a copy of the bill, until the 29th of March, and until notice that application would be made to Judge Biddle to seal the bill on the 31st of March. It was then an impossibility to prepare a copy of a bill containing so large an amount of matter, and serve it forty-eight hours before the time fixed for sealing. The counsel for the plaintiffs in error did, however, prepare and serve a copy, but not within the time prescribed by the rules of court. When the counsel met at Judge Biddle’s house for the purpose of having the bill settled and sealed, the objection was made, as before stated, by counsel for the defendant in error, ■ that the rule of court requiring a copy to be served forty-eight hours had not been complied with. The learned judge, deeming the objection well taken, refused to seal the bill.

As the case is now presented to us, the objection referred to has about it the flavor of sharp practice. The counsel for the defendant in error had in his possession the stenographic report of the -trial, taken by the stenographer appointed by both parties ; to serve an additional copy thereof upon him could give him no possible information. It was upon this copy so taken that all the negotiations looking to a settlement of the bill were based, and no intimation was given that defendant in error’s counsel would not regard the copy in his possession as a copy of the bill, until it was too late to comply with the rule of court. The testimony of Magistrate Collins was sent as part of the bill of exceptions, and received by the attorney for defendant in error as such. The latter could not have failed to see that counsel on the other side were relying upon the copy furnished by the stenographer, and his call for the testimony of Magistrate Collins was at least an implied recognition of such copy. The conduct of the counsel for the defendant in error was evidently calculated to mislead the other side, and we must regard it as a waiver of a strict compliance with the rule of court. We take back nothing that was said in Haines v. Commonwealth in regard to a strict observance of those rules, but said rules were intended to further the administration of justice, and not to defeat it.

The learned judge further returns and avers that said bill “ is not a true bill of exceptions and does not state the exceptions in manner and form as they were taken upon the case.” This return, under all the authorities, is bad for uncertainty. It is sufficient to refer to Commonwealth v. Commissioners, 37 Pa. 277; Rex v. Liverpool, 2 Burr. 731; Rex v. Malden, 2 Salk. 431. The return must not be in mere general terms, without alleging specifically the facts relied upon. The return does not state in what respect the exceptions are deficient. Most of them are exceptions to answers to points about which there could seem to be little difficulty. The return that they were not taken in “ manner and form ” as stated, throws no light whatever upon it. It is true that the power of determining in this proceeding whether the particular bill of exceptions tendered is or is not true, rests exclusively with the judge before whom the cause was tried, and to whom the writ is directed: State v. Todd, 4 Ohio 351; People v. Jameson, 40 Ill. 96; State v. Noggle, 13 Wis. 380. And where the return alleges that the respondent is willing to sign a true bill, but alleges that the bill presented is not true, a peremptory writ will not be awarded: Creager v. Meeker, 22 Ohio 207. Yet a judge is not privileged to reject a bill which properly presents the case. And a return to the alternative writ, which alleges that the relator had no authority to compel the respondent to sign the bill, since he himself must be the judge of the correctness of the exceptions, is insufficient, where it fails to show that the bill as presented did not state the facts truly, or that the exceptions were not taken in the proper manner and at the proper time: Etheridge v. Hall, 7 Port. 47; High on Mandamus, §§ 202, 210.

The learned judge below did not refuse to seal this bill by reason of any personal right or privilege of Ms own. I am quite sure he would not deny a litigant a bill of exceptions for any such reason. But his refusal seems to be based upon a supposed right of the counsel for the defendant in error to object for the reason that a copy of the bill had not been served upon him within the time required by the rule of court. We have already said that under the circumstances of tMs case, we are of opinion the objection referred to was not well taken. We think it Ms duty to settle and seal this bill now, precisely as if such objection had not been made. It is for Mm to say what exceptions were properly taken.

The writ we issued was preliminary and alternative. The peremptory writ is now awarded, but we have no doubt the learned judge will promptly seal a bill after tMs expression of opinion by this court, in wMch case a further writ will be unnecessary.