Tollensen v. Gunderson

By the Court, WhitoN, C. J.

The motion in this case must be sustained. The affidavits which have been filed show, that an attempt was made to settle the bill of exceptions on the 4th of June, 1853, and the dispute is, whether the exceptions were then in fact settled, or on the 6th, the day they were signed. We are satisfied that they were not settled *111 on tlie 4th, but that the matter was postponed by the judge, to another time. The affidavit filed to resist the motion, states that the judge said, when the attorneys were before him for the purpose of settling the exceptions, on the 4th of June, that he would only sign a bill of exceptions which should correspond, substantially, with his minutes of the testimony, and directed the attorney for the plaintiff in error, to amend his bill of exceptions, so as to make it correspond with the minutes, and he would sign it. The affidavit further states, that the bill of exceptions was so amended by the attorney for the plaintiff in error, on the same day, but the judge could not be found ; that the next day was Sunday ; and that on Monday, the 6th of June, the exceptions were, in fact, signed by the judge. These facts show that the judge, on the 4th of June, stated to the parties, the principles which would govern him in settling the exceptions, but do not show that they were, in fact, settled. (Pelletreau, vs. Moore, 9 Wend. 493 .)

It appears, from the affidavit, that the judge went away on the 4th of June, without appointing any time for settling the exceptions, and fails to state that on the 6th of June, the attorney of the defendant in error was present, or that he had any notice that they were then to be settled. We think that the judge should have notified the parties when to appear before him again for the purpose of settling the exceptions, or, that the attorney for the defendant in error, should have been notified by the attorney for the plaintiff in error, pursuant to the rules of the County Court. It was contended by the counsel for the plaintiff in error, that as this bill of excep- *112 ^lons bas become a record of the County Court, this court cannot set it aside. This position is not supported by any of the authorities referred to. On the contrary, they all concur in sustaining the position, that when the exceptions are settled in a manner not authorized by law, the court will set them aside or refer them back for correction, on motion. Dean et al. vs. Gridley, 10 Wend. 255 ; Delavan vs. Boardman, 5 id. 132; Pelletreau vs. Jackson, 7 id. 471; Jackson vs. Tuttle, 4 Conn. R., 364; 1 Burr. 457; Agnew vs. Campbell’s Adm., 2 Harr. 291 ; Wilson vs. Moore , 4 id. 186.

It is true, that when regularly settled by the judge, the court will not interfere, but the parties have a right to insist that the rules of law shall be observed in their settlement.

The motion is sustained.