Arnold v. Leathers

32 Ky. 287, 2 Dana 287, 1834 Ky. LEXIS 80

• Court: Court of Appeals of Kentucky
• Decided: October 15, 1834
• Status: Published

Opinion

Chief Justice Robertson

delivered the Opinion of the Court.

Whether the plaintiff in error was entitled to a'new trial, depends solely on the question, whether there is any bill of exceptions which this court can regard as a legal certification of.the proofs on the trial.

A paper purporting to be a bill of exceptions is presented. . But it is not signed either by the Judge, or bystanders. Three persons certify that the bill of exceptions was presented to the Judge, and he refused to sign it; and the Judge states an insufficient reason for his refusal. The case, therefore, is of that class provided for bv an act of. 1793, 1 Dig.. 188. In such a case, when the circuit judge shall have refused to sign, and for that refusal assigned, either no reason, or insufficient reasons, the record should shew,-that the bill of éxceptions contains the truth ; and the signatures of three bystanders, affixed to the bill itself might be a sufficient attestation of its truth ; because, by signing it, the bystanders attest its truth ; and the fact that the Judge did not controvert its truth, is a confirmation of the attestation.

But here there is no such attestation.’ The collateral certificate that — the bill of exceptions was presented,-to the Judge, and that he refused to sign it, cannot be construed as importing that the bystanders knew, or meant to certify, that the facts stated iq it are true.

Wherefore, we are constrained to affirm the judgment...