Grady v. Sullivan , 1 Mich. Pr. 11 ( 1896 )

The facts as shown by the papers in the case were as follows:

a — That judgment was rendered October 9, 1895, in favor of the plaintiff; that on the application of the defendants the time for settling a bill of exceptions was extended until December 31,1895; that four days before the return day, the Circuit Judge before whom the case was tried made an ex parte order extending the time for returning the writ of error for forty days; that after the expiration of that time said writ was on motion of the appellants dismissed.

5 — That on April 7,189(1, a second writ of error was issued returnable May 10, 1896.

e — That on May 14,1890, the junior attorney for the appellants applied to the trial judge for an order extending the time for returning said writ of error; that said judge refused to entertain said application, ex parte-, that on the return day of said writ the senior attorney for the appellants made a like ex parte application to the other Circuit Judge who, in reliance upon the statement of said attorney that the trial judge could not be found in his office, and upon the strength of the affidavit of said attorney excusing the delay in settling a bill of exceptions on the ground of sickness, and averring his expectation of being able to settle the bill during the forty days extension asked for, granted said extension.

d — It further appeared from the affidavit of said senior attorney read in opposition to said motion, that on learning of th’e refusal of said trial judge to hear the application ex parte he went to the office of the opposing attorney, and found it locked; that he then went to the office of said judge, and could not gain admittance; that it was late in the afternoon of the return day; that he therefore presented the matter to the other circuit judge, and read to him the rule hereinbefore cited.