8 Mich. 74 | Mich. | 1860
This being an appeal from a decree in Chancery, in a case in which the witnesses were examined in open court, the only way in which it can be tried here upon the facts, is upon a case made and settled as prescribed in §3511 of Compiled Laws, which provides that “in case any cause in Chancery shall be so tried in open court, either party shall be entitled to make and settle a case, setting forth the evidence at large before the Judge who tried the same, at such time and in such manner as said Judge shall direct, or as shall be prescribed by the rules of said court; and upon the making and filing of such case within three months after such trial, the same shall be taken and deemed to be the evidence in said cause, to the same extent and with like effect as if the said testimony had been taken before a Circuit Court Commissioner, and certified by him.”
There is no such case before us, but the Circuit Judge has transmitted instead a certified copy of his minutes of the testimony exhibited before him. The obvious intention of the statute, is to confer upon parties the right to settle a case, setting forth the evidence given in the court below, for the consideration of this court in the hearing upon appeal, to avoid the omissions and misapprehensions of the Circuit Judge, which might easily occur in the haste and perplexities of the trial before him. Certainly we have no' more authority to consider his minutes of the testimony than those of counsel.
The proper course in this class of cases, is for the party desiring the testimony to be certified to us, to make a case setting it forth, present it to the Circuit Judge, and procure his order, fixing the time and place when and where it shall be settled, and for notice to the opposite party, that he may attend and propose amendments; or instead thereof to take other proceedings equivalent. The practice should be assimilated, as near as may be, to that of making cases-
This motion is made to docket and dismiss the appeal for want of such a case. This we think to he irregular. The appeal has been regularly taken, and if neither party desires it to he heard upon pleadings and proofs, hut they are content to submit it without the testimony exhibited below, we think they may do so. But as we construe this section of the statute, either party may initiate proceedings for making and settling a case. If neither does it, and the case is brought to a hearing, it will necessarily devolve upon the appellant to show that the decree is not warranted by the pleadings; the presumption being that there was evil dence below to authorize it.
Motion denied without costs.
Gould, suggested a difficulty in this statute, that it required the case to he made and settled within three months after the trial; and the cause might not he decided within that time.
We must construe the statute to mean three months after the trial is concluded by decree.