Murphy v. Gould

39 App. D.C. 363, 1912 U.S. App. LEXIS 2236

• Court: Court of Appeals for the D.C. Circuit
• Decided: December 2, 1912
• Docket: No. 393. Original and No. 2478
• Status: Published

Opinion

Mr. Chief Justice Shepard

delivered the opinion of the: Court:

This is a petition for a writ of mandamus to compel Mr. Justice Gould, of the supreme court of the District of Columbia,, to settle a bill of exceptions. It appears from the petition and. return that petitioner, Walter Murphy, was the plaintiff in an action against the Capital Traction Company, pending in the supreme court of the District, which was tried before Mr. Justice Gould, holding special term of the circuit court, June 18, 1912.. The jury, under direction of the court, returned a verdict for1 defendant June 19, 1912, upon which judgment was entered July 2d. Appeal was noted therefrom to this court on the same: day, which was perfected July 26,1912. The settlement of bills, of exception is regulated by common-law rule 48 of said court,, which reads as follows:

“1. The bill of exceptions shall be prepared by counsel. If not settled before the jury retires, counsel tendering it shall give two days’ notice in writing to opposing counsel of the time at which it is proposed to submit the same to the court to be settled, and shall also, at least eight days before -the time designated in such notice, present to opposing counsel the proposed bill or a copy thereof. The bill shall be submitted to the' court within thirty-eight days after judgment shall have been entered,, unless the court shall, for cause shown, extend the-time.'

“2. The fact of settling and filing the bill of exceptions shall' be noted in the minutes of the court.

“3. If the court is unable to settle the bill of exceptions a hew trial shall be granted.

“4. The submission, settling, signing, or filing of a bill of exceptions shall not be affected by the expiration of any term, provided this rule is complied with.”

August 19, 1912, the court entered an order extending the time for the submission of plaintiff’s bill of exceptions to and including September 20, 1912. According to the arrangement of the supreme court of the District for the summer recess one of the members of said court only is required to be personally present; and the several justices divide the time between themselves, one succeeding the other after periods of two weeks’ service. In September Mr. Justice Gould was absent and the circuit court sessions were held by Mr. Chief Justice Clabaugh from September 16 to and including September 30, on which day the April term ended. On September 18, plaintiff’s counsel delivered a copy of his proposed bill of exceptions to counsel for defendant, and on September 20 submitted it to Chief Justice Clabaugh. Justice Gould being expected to be in court on Tuesday, October 1, counsel for plaintiff, on September 19, gave notice in writing to defendant’s counsel that on October 1, or as soon thereafter as counsel could be heard, he would ask Mr. Justice Gould to settle and sign the bill of exceptions, which had been submitted to the court September 20, and a copy of which had been presented to counsel on September 18. On the .same day—September 19—counsel filed a motion for an extension of the April term for two days so as to include October 1 therein. The motion was noticed for hearing on September 30, and then continued for hearing to October 11. On that date Mr. Justice Gould entered an order, as of September 30, extending the April term so as to extend to and include October 2, 1912. In the meantime and prior to October 1 defendant’s counsel had filed a motion to strike out the proposed hill of exceptions submitted September 20, because of the omission to comply with rule 48 in that the copy of the same had not been served upon defendant and notice given, as required, eight days before the expiration of the term to which the time for submission of said bill had been extended; namely, September 20, 1912. On September 19, plaintiff had also filed a motion to correct the order of August 19, so as to make the same show that it embraced also an order extending the time within which the transcript of the record might be filed in the court of appeals. This motion was accompanied with affidavits tending to show that the said extension had been applied for and granted at the same time, though not, in fact, included in the entry of the order by the clerk. October 1, plaintiff asked the justice to sign the bill of exceptions, but that request, as well as the motions aforesaid, were postponed for hearing on October 11. On October 16, Mr. Justice Gould denied the motion to correct the order of August 19, so as to extend the time for filing the transcript. On the same day he refused to sign the said bill of exceptions, and granted the motion to strike the same from the files because the notice required by rule 48, and the copy of said bill, had not been given to counsel for defendant eight days before the expiration of the order of extension. Responding to the rule to show cause, Mr. Justice Gould says that he did examine said proposed bill of exceptions, and satisfied himself that it did not correctly set forth all the material occurrences of the said trial; but he adds an expression of his willingness, provided he was in error in holding that the bill of exceptions was not presented as required by rule 48, to enter upon the task of settling a bill of exceptions in said cause in accord with the truth and right of the matter.

The respondent has interpreted rule 48 to mean that service of a copy of the bill of exceptions shall be had upon opposing counsel eight days before the expiration of the period of thirty-eight days allowed by the rule, or of the extended period. The object of giving thirty-eight days for the settlement of a bill of exceptions, according to this view, is that the party charged with its preparation shall have thirty days .therefor, and that his adversary shall have eight days within which to examine the same and express his agreement or his disagreement. In case of agreement either the justice trying the case, or the justice sitting in his stead, may sign the same. Its presentation to him within the time is all that counsel can do. In case of disagreement the bill can only be settled by the justice who presided at the trial, because he alone could have the necessary knowledge to> enable it to be correctly settled under such circumstances. If he-be absent the bill may be submitted to the justice presiding in his stead, and acted upon, as of the date of its submission, by the trial justice upon his return to this court. It is not to be-presumed that under such conditions he would fail to- settle the-bill and make it relate back to the time of such submission. But to enable this to be done, the bill must have been submitted in accordance with the requirement of the rule governing the matter. Instead of enacting a statute completely regulating the-practice of the supreme court of the District, Congress invested that court with the power to establish such other rules as it may deem necessary for regulating the practice of the court. D. C.. Rev. Stat. sec. 770. See also Code, sec. 73 [31 Stat. at L. 1201,. chap. 854]. The same power is conferred upon this court with respect to the transaction of the business brought before it, and the time and method of entering and giving notice of appeals. Sec. 6 of the act establishing the court of appeals, approved February 9, 1893; Code, sec. 225 [31 Stat. at L. 1225, chap. 854], These rules “have the force of law, and are binding upon the court, and upon the suitors, and those who represent suitors.”' They cannot be dispensed with by the court to meet the hardship of a particular case. District of Columbia v. Roth, 18 App. D. C. 547—551; Talty v. District of Columbia, 20 App. D. C. 489—491; United States ex rel. Mulvihill v. Clabaugh, 21 App. D. C. 440—443; District of Columbia v. Humphries, 11 App. D. C. 68-78.

It would serve no useful purpose to review the decisions of other courts relied on by the petitioner. They arose under-different statutes and rules, and are not applicable. “The decision here must be made in accordance with the terms of our rules.” Mackall v. Willoughby, 8 App. D. C. 143—145; District of Columbia v. Humphries, 11 App. D. C. 68—79; United States ex rel. Mulvihill v. Clabaugh, 21 App. D. C. 440-444.

This brings us to the consideration of rule 48, which governs this case. The respondent construed the rule to mean that the bill of exceptions should be submitted for settlement,—that is to say, delivered to the trial justice for settlement before the expiration of the thirty-eight days or the extended period; that two days prior to said date, notice should be given to opposing counsel of the time of settlement; and that not less than eight days before the designated period, the proposed bill or a copy shall have been given to opposing counsel. In this case the time fixed for settlement of the bill was before the expiration of the extended time, and though it is not certain, it may be assumed that the two days’ notice in writing was given. But the petition shows that the copy of the bill of exceptions was delivered to opposing counsel but two days before the expiration of the time. This omission was held to be fatal to the settlement of the bill.

This is not an unreasonable interpretation of the rule. Johnson-Wynne Co. v. Wright, 28 App. D. C. 375—380. The facts and circumstances of that case are quite like those presented here. There the trial justice had refused to settle a bill of exceptions because of the failure to deliver a copy of the bill to opposing counsel eight days before the expiration of the time limit. In dismissing the petition for mandamus, it was said: “We are not to be understood as saying that the trial justice might not have signed the bill within the thirty-eight days, for reasons satisfactory to himself, notwithstanding the failure, within the required time, to submit the copy to opposing counsel. In a recent case, where a motion was made in this court to strike out a bill of exceptions that had been settled within the thirty-eight days, although notice had not been given within the proper time to opposing counsel, we denied the motion, intimating in doing so that the failure to give the required notice might be waived by the trial justice for reasons satisfactory to himself. In such eases, absence from the District might prevent the service of notice upon opposing counsel, or there might be other good reasons, within the knowledge of the trial justice, for failure in that’respect; and as in the case mentioned, the trial justice had settled the bill, it could well be presumed that such conditions might have existed,—especially as it was plain that no injury could have accrued to the opposing party. Lindsey v. Pennsylvania R. Co. 26 App. D. C. 125.” With this explanation of Lindsey’s Case, the court proceeded to say: “However this may be, it is clear that the trial justice is not bound to waive the required notice to opposing counsel, and settle the bill when the same has not been given. Opposing counsel had the right to insist upon the strict observance of the requirements of the rule, and the trial justice had the right to refuse to settle the bill of exceptions over their objections.” The action of the court in striking the bill of exceptions from the files is immaterial. There was no occasion for such motion, as the offered bill of exceptions, whether actually filed by the clerk or not, was not a part of the record. It could only become so by its settlement and signature by the trial justice. It may be considered, however, as an objection by opposing counsel to the settlement of the bill for noncompliance with the requirement of the rule relating to the delivery of a copy to counsel at least eight days before submission, as required by the rule.

For the reasons given the petition must be dismissed, with costs; and it is so ordered.

In this connection it is appropriate to consider the motion of the appellee to docket and dismiss the appeal because of the failure to obtain an extension of the time for filing the transcript. As counsel for the Appellant concede that the appeal would be of no avail without a bill of exceptions, it is unnecessary to discuss the facts upon which the motion is founded, and it will be granted. The clerk will enter an order to that ■effect.

Petition dismissed, and the appeal ordered to he docketed and dismissed.

Writ of certiorari in Murphy v. Capital Traction Company denied by Supreme Court of the United States January 24, 1913.