Galloway v. Fleing , 2 Shan. Cas. 614 ( 1877 )

DealeRIOK, Ch. J.,

delivered the opinion of the court:

In this case a trial was had in the circuit court of Lewis co anty, resulting in a verdict for defendant.

Plaintiff has appealed to this court, and has filed a petition praying for a mandamus, to compel the circuit judge to sign a l>ill of exceptions which he had prepared and filed with his petition. The petition alleges that the trial lasted eight or nine days, and the verdict was rendered at 5 o’clock p.m., on August 1, 1877, and the court adjourned at 7 o’clock next morning, and refused to continue the term to enable the counsel for defendants to make out a hill of exceptions; that it was impossible to make out said bill of exceptions after 5 o’clock, and before 7 o’clock next morning.

The bill of exceptions prepared and filed by defendant, shows that most of the evidence was in depositions; these were very numerous, but still, could, with little trouble or delay, have been incorporated in a bill of exceptions, and the testimony of the witnesses examined is not voluminous, and but few exceptions appear to the rulings of the court during the progress of the trial. It does not appear that any effort was made to prepare, or offer to p?’esent to the court for his signature, a bill of exceptions after the return of the verdict.

Ho ¡withstanding defendant’s statement that the bill of exceptions could not be prepared before the adjournment of the court, we are of opinion that it might have been done within that time so as to present all material questions arising in the progress of the trial, and the case does not show satisfactorily that the judge, in refusing to continue the term to give further time to make out the hill of exceptions, was an arbitrary exercise of his discretion, as it does not appear that any effort was made to prepare the bill of exceptions after verdict and before adjournment.

A clear case of abuse of his discretion by the circuit judge ought to be made to appear, to authorize us in the use of the extraordinary process of mandamus.

Such a case we do not think is made out, and the application is refused.