69 Wis. 369 | Wis. | 1887
It appears that judgment having been rendered in favor of the plaintiff, in the circuit court of Chippewa county, in the case wherein Clarentine Quackenbush, administratrix of the estate of Edward G. Quackenbush, deceased, is plaintiff, and the said "Wisconsin & Minnesota Railroad Company is defendant, before the Hon. Solon H. Clough, the judge presiding, and the defendant wishing to appeal from said judgment to this court, the attorneys of said defendant prepared and served upon the attorneys of the said plaintiff a bill of exceptions, purporting to contain all the evidence necessary to present the questions of law raised at the trial, in the narrative form. It further apnears that
It cannot be denied that the learned judge, the respondent to this writ, has strictly performed its mandate, and that he is entitled to have the proceedings dismissed, and that the learned counsel of the relator has no just cause of complaint. But we can well understand the difficulty and embarrassment under which the defendant is placed, by this strict performance of the alternative writ, in being unable to use the evidence in the case upon the hearing of the appeal, especially upon the question whether the verdict is contrary to it. ¥e are not disposed to criticise the proceedings taken by either party, and certainly we cannot question but that the learned judge strictly performed the unpleasant duty of obeying the writ.
We do not think it would be just to leave the defendant in the attitude where these proceedings have placed it, with a bill of exceptions settled and signed and made part of the record, without a certificate of the judge, that it contains all the necessary evidence. It was questioned by the learned counsel of the relator whether this court had the power to correct any mistake, oversight, error, or improvidence, in the allowance of the writ, without motion of one or other of the parties, or on its own motion. We do not doubt the power of this, court to do so, in a proper case, and we think it proper to exercise that power in this case, and dismiss the alternative writ, and set it aside, because it was improvidently granted, and by an oversight. It is well known to every lawyer that the only alternative writ proper to be granted to a trial judge to settle and sign a bill of exceptions, is one commanding him to settle and sign a bill according to the facts, without any specific direction as to what are the facts to be stated therein. This alternative writ is a flagrant violation of this invariable rule. We
By the Court. — ■ It is therefore ordered: First, That the alternative writ granted in this case be, and the same is hereby, quashed and dismissed, and that all things done under and by virtue of it be, and the same are hereby, set aside, vacated, and annulled, and held for naught; and, secondly, that, in case the said defendant desires to have a bill of exceptions settled and signed in said cause, it cause one to be prepared according to the order of said judge dated the 13th day of May, 1887, and as already settled and allowed by him, containing all the testimony of the several witnesses named in said order, in narrative form, and condensed as much as practicable, without affecting the sense or substance thereof, and present the same to the said judge for his signature, within thirty days from the entry of this order.