Tefft v. Windsor

Oct 22, 1868
Reporters:
,
Before:
Campbell
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 *427out, 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.