Kelly v. Moore , 22 App. D.C. 1 ( 1903 )

Hr. Chief Justice Alvey

delivered the opinion of the Court:

We have heard the matter argued, and have considered the same in the light of the authorities cited by the respective parties, and which would appear to be conclusive against the present application.

It is matter of extreme regret that such a state of case as we have here should be presented to this court; and, especially is it to be regretted, that we have to hear and determine an appeal on what there is ground for supposing may be an imperfect or defective bill of exceptions. It is clear, however, that there is no power in this court, by certiorari or otherwise, to correct the imperfections or misstatements that are alleged to exist in the bill of exceptions taken and ceirtified to this court.

Before the adoption of the new code for this District, bills of exception were required to be prepared in accordance with the provisions of the old English statute of 13 Edw. I, Stat. 1, Chap. 31, which was in force in this District. But 'by section 73 of the new code it is provided as follows: “ If, upon a trial of a cause before a jury, an exception be taken, it may be reduced to writing at the time, or it may be entered on the minutes of the justice and afterwards settled in such manner as may be provided by the rules of the court and stated.in .the bill of exceptions, with so much-of the substance of the evidence as may be material to the questions to be raised, and such bill of exceptions need not be sealed, and shall be considered a part of the record in case of an appeal from the final judgment rendered in the case.”

It does not appear, indeed it is not suggested, that then was any rule of court that would authorize or justify any such amendment of the bill of exceptions as that directed or authorized to be made in this court, by the order of the court below, passed on the 3d day of April, 1903. That order simply referred the matter to this court to settle the question as to what should constitute the bill of exceptions and how it should be made up. That power, however, does not belong to this court. The bill of exceptions must be settled by the court below before -whom the cause was tried, and be brought into this court in a completed form, and we must accept what is certified therein as being the actual truth.

This question has been repeatedly before the Supreme Court of the United States, and, as would appear, has been definitely settled by decisions of that court. It is settled that a judge cannot act judicially upon the rights of parties after the lapse of the term at which the trial took place, in settling and signing a bill of exception, in the absence of a rule of court, authorizing the same, or a previous order of court extending the time therefor, or the agreement of the parties for that purpose. Muller v. Ehlers, 91 U. S. 249, 251. The rule upon the subject is very fully and clearly stated by Mr. Justice Gray, speaking for the court, in Michigan Ins. Bank v. Eldred, 143 U. S. 293, 298, where it is said that: “By the uniform course of decision, no exceptions to rulings at a trial can be considered by this court, unless they were taken at the trial, and were also embodied in a formal bill of exceptions presented to the judge at the same term, or within a further time allowed by order entered at that term, or by standing rule of court, or by consent of parties; and, save under very extraordinary circumstances, they must be allowed by the judge and filed with the clerk during the same term. After the term has expired, without the court’s control over the case being reserved by standing rule or special order, and especially after a writ of error has been entered in this court, all authority of the court below to allow a bill of exceptions then first presented, or to alter or amend a bill of exceptions already allowed and filed, is at an end. United States v. Breitling, 20 How. 252; Muller v. Ehlers, 91 U. S. 249; Jones v. Grover & B. S. Mach. Co., 131 U. S. Appx. 150; Hunnicut v. Peyton, 102 U. S. 333; Davis v. Patrick, 122 U. S. 138; Chateaugay Ore & Iron Co., Petitioner, 128 U. S. 544.

“ The duty of seasonably drawing up and tendering a bill of exceptions, stating distinctly the rulings complained of and the exceptions taken to them, belongs to the excepting party, and not to the court; the trial court has only to consider whether the bill tendered by the party is in due time, in legal form, and conformable to the truth; and the duty of the court of error is limited to determining the validity of exceptions duly tendered and allowed. Hanna v. Maas, 122 U. S. 24. Any fault or omission in framing or tendering a bill of exceptions, being the act of the party and not of the court, cannot be amended at a subsequent term, as a misprision of the clerk, in recording inaccurately or omitting to record an order of the court might be. Be Wight, 134 U. S. 136. The writ of certiorari prayed for must therefore be denied, and the case must be determined upon the original bill of exceptions.”

This well-established rule has been reiterated and applied in subsequent cases by the Supreme Court, as in the cases of Morse v. Anderson, 150 H. S. 156, and Hume v. Bowie, 148 U. S. 245, 253; and there seems to be no departure from it.

As in the case of Michigan Ins. Bank v. Eldred, supra, the writ-of certiorari prayed for must be denied, and the appeal determined upon the original bill of exceptions.

Writ of certiorari denied.