Crittenden v. Schermerhorn

35 Mich. 370, 1877 Mich. LEXIS 21

Opinion

Cooley, Oh. J.:

In this case the bill of exceptions was settled by the judge who tried the cause, after he had retired from office. It appears, however, to have been done under the permission of a stipulation entered into by counsel for the respective parties.

The defendant in error now raises the objection that a stipulation could confer no such authority. The point is well taken. But it does not follow that the judgment should be affirmed. On the contrary, where a party has lost the benefit of his exceptions from causes beyond his control, it is proper to give him a new trial; and this we have done in some cases where the judge’s term of office expired before exceptions could be settled. The judgment will therefore be reversed and a new trial ordered, the costs to abide the event of the suit.

The other justices concurred.