Tefft v. Windsor

17 Mich. 425 | Mich. | 1868

Campbell J.'

The writ of error and bill of exceptions are both in due form, and upon their face are entirely legal, and there is no denial that the bill is settled according to the facts. This being so, I think when a party is sought to be deprived of his legal right, on grounds outside of the record, he is entitled to have the benefit of any equities in his favor. In this case there Avould have been no difficulty in having the bill settled, but for the resignation of the judge. ' Where a party loses his exceptions on any such ground, it is always customary to grant a new trial if there is any showing of a probable ground of complaint on the rulings. In Scribner v. Gay, 5 Mich. 511, we held that a "bill signed by a judge -Avho had gone out of office, ought not to be stricken out, although there might have been irregularity in its settlement, as the party would be remediless without his own fault. In this case there has been entire good faith, and I think the case ought not to be dismissed.

Cooley Oh. J. and Graves J. concurred. Christianoy J.

thought the party could not be relieved against his stipulation, although there was no want of good faith, as ho was bound by his agreement.