Morgan v. Kent Circuit Judge , 1907 Mich. LEXIS 754 ( 1907 )

McAlvay, C. J.

An application for mandamus is made to compel the circuit judge to sign a bill of exceptions as prepared and presented to him by relator. The case was one tried before one of the judges of the Kent circuit court. Plaintiff brought suit against relator as defendant to recover damages from him for his false representations in relation to the sale of certain stock of a mining, oil, and gas company, which he induced plaintiff to purchase. At the close of plaintiff’s case defendant moved the court to direct a verdict in his favor. This motion was denied and defendant excepted, and then proceeded to make his defense upon the merits. The trial resulted in a judgment for plaintiff. A motion for a new trial was made and denied; the judge, at the request of defendant, filing his reasons therefor in writing.

The return shows that the exception taken upon the refusal of the court to direct a verdict was one of several covered by the bill of exceptions as at first presented; that the judge ruled that he would allow certain proposed amendments and finally, after many meetings held to settle said bill of exceptions, defendant abandoned all but one error assigned, and requested the judge to settle and sign his bill of exceptions as then presented, which contained only the evidence on the part of plaintiff. This the court refused to do and allowed an amendment proposed by plaintiff which contained a large portion of defendant’s own testimony. This application is the result of such action.

Defendant relies upon Act No. 182, Pub. Acts 1899, which provides that in the circuit courts of this State a defendant at the close of plaintiff’s case may move for an instructed verdict, or demur to the evidence, and, upon refusal of the court to grant such motion, he shall have the benefit of an exception, and without waiving it may then introduce testimony and make his defense upon the merits.

The settlement of bills of exceptions is a duty devolving upon the trial judge, and is an exercise of his judicial discretion. In this case we discover no abuse of such discretion. The.trial judge has allowed an amendment incorporating matter which he declares, in his judgment, is material. He has not by this act deprived defendant of the benefit of the exception upon which he relies. By this proceeding, summary in its nature, now before us, this court in effect is asked to determine that the trial court was in error in denying defendant’s motion to instruct a verdict in his favor. This is so because we would deny the writ if, from the exhaustive examination of plaintiff’s evidence necessary to pass upon the question raised, we should find that the court had ruled correctly.

This examination and determination we decline to make in advance of a hearing upon a complete record. At that time it will be proper to give such construction to the statute invoked as the case may require.

. The writ of error, by which defendant proposes to remove the case to this court for review, will afford him a complete and adequate remedy.

The writ of mandamus is denied.

Carpenter, Grant, Blair, and Montgomery, JJ., concurred.