Port Huron Savings Bank v. Carleton ( 1896 )

The facts as shown by the affidavit of Frank T. Wolcott, one of the attorneys for the appellees, filed in support of said motion were:

a — That this is one of the three suits commenced by declaration in the circuit court for St. Clair county upon certain promissory notes given by the defendants and discounted by the plaintiff in the usual course of its banking business.

b — That on January 24, 1895, a judgment was directed in favor of the plaintiff in this suit, and by stipulation judgments were entered in the remaining eases for the amount duo on the note sued upon therein; that said latter cases were to abide the result of this case in the Supreme Court, where it was to be removed by the defendants.

c — 1That upon the trial it appeared in the pleadings that the notes sued upon were given on the purchase of an engine, boiler, and other machinery for a vessel owe ed by the defendants, who sought to recoup damages on account of defective fastening of the boiler, and consequent injuries suffered by them or their vessel.

d — That on May 14, 1895, a bill of exceptions was settled and filed in this case, after which a bond was filed to stay execution; that on January 8, 1896, deponents firm received notice of the issuance of a writ of error in the ease, returnable February 15, 1896; that said writ was not returned and filed until February 26, 1896, and no assignments of error have been filed or copy served.

An affidavit in opposition to said motion made by P. H. Phillips, one of appellant’s attorneys, was filed, in which it was averred:

a — That immediately after' the attorneys for the plaint!if had indorsed upon the bill of exceptions in this ease their consent to its being signed as proposed, it was handed to the circuit judge for signing; that he informed the deponent that he would axamine the bill, and if he found any changes necessary would notify deponent, and, if not, would sign and file it with the clerk.

b — That soon afterwards negotiations for a settlement of the judgment were opened between one of the attorneys for the appellants and one of the defendants; that such negotiations were had with the knowledge of plaintiff’s cashier and of its attorneys; that said negotiations continued up to about March 5, 1896; that a few days subsequent to said date deponent received a letter from said defendant, announcing the impossibility of reaching a settlement, whereupon deponent handed the record in the case to the printers, in whose hands it now is, and is being printed for the hearing in this case.

c — That the delay in making return to said writ occurred as follows: Sometime after the delivery of the bill of exceptions to the circuit judge he filed the same with the county clerk, but through inadvertence failed to sign the bill; that deponent was ignorant of this fact until the return day of said writ, at which time the circuit judge was absent from Port Huron, where his court was held; that as soon thereafter as was possible deponent, in open court and in the presence of plaintiff’s attorneys, called the attention of the circuit judge to said omission, whereupon he, with the knowledge and consent of said attorneys, signed said bill, and the writ of' error was immediately returned, with the required transcript to the Supreme Court.

ci — 1That there is no intention on the part of the appellants to delay the collection of said judgment; that the delay which has occurred since the settlement of the bill of exceptions has been occasioned by said negotiations for a settlement; that at no time has there been any effort made on the pqrt of the attorneys for the plaintiff to have the case pushed to an early hearing in the Supreme Court.

e — That since the service of this motion, deponent has caused to be served on the attorneys for the plaintiff and to be filed in this Court the assignments of error; that the failure to serve same was a mere oversight, and that deponent supposed the same had been done.

/ — That the principal defendant, who has had charge of this ease, lives in Cleveland, Ohio; that since the service of this motion deponent has been unable, by reason of the absence from home of said defendant, to obtain an affidavit from him in connection herewith; that if said writ of error is dismissed, said defendants will be deprived of a review of the case, and great and irreparable injury will be done to them.