State ex rel. Atkins v. Todd

4 Ohio 320

• Court: Ohio Supreme Court
• Decided: December 15, 1829
• Status: Published

Opinion

By the Court:

The authority to issue a manclamus, in a case like the present, can not be doubted. The power is incident to supervising courts, and there are instances of its exercise, both in England and in our own country.

*But this power is to be exercised in such a manner as best to promote the advancement of justice, and the only legitimate object of its exercise, in cases of this sort, is to compel the court below to place upon the record a true statement of the facts as they existed.

The bill of exceptions is in practice, and by law, to be signed and sealed only, not to be prepared by judges; the only obligation upon the judges is to sign and seal a true bill of exceptions.

But the object of the relator is not to compel the judges to sign a correct bill of exceptions, but to sign the bill offered. The motion in 1827 is fora mandamus to sign “the bill” presented, or show cause, etc. The cause shown is that the bill presented did not contain a true statement of the facts. It does not appear that the judges refused to sign any and every bill of exceptions; but they refused to sign the bill presented, because it was not true. The power of determining whether a bill of exceptions is true, or not, is vested in the judges, to whom it is presented for signature. In this case, that power has been exercised, and the return of the judges shows that the bill, as tendered, was not true. In this matter, thus presented, we may adopt the language of the chief justice of the United States, in a case that bears a very close resemblance to the present. 4 Pet. 106. “ If the court had granted a rule to sign a bill of exceptions, the judge could have returned that he had performed that duty. But the object of the rule is to oblige the judge to sign a particular bill of exceptions, which had b.een offered to him. The court granted the rule to show cause, and the judge has shown cause, by saying that he has done all that can be required of him, and that the bill is not such a one as he can sign. Nothing is more manifest than that the court can not order him to sign such a bill of exceptions.”

If the return be false, or if there be a refusal to sign any bill of exceptions, we need not indicate a remedy.

The rule for a mandamus is discharged, and the case remitted that the relator may apply for a mandamus to sign a bill of exceptions, or show cause, etc.