Widemann v. Ah In

Opinion op the Court, by Judd, C.J. This action was begun at the July Term, 1887, of this Court, and was continued by agreement to the October Term. At the October Term the jury was waived and the case was finally heard in vacation, and judgment in writing for plaintiff was filed on the 24th January, 1888. Subdivision D of Rule 8 requires that exceptions to findings of fact or of law in jury-waived cases must be perfected by * * * presenting to the Justice a bill of exceptions * * * , within ten days from the filing of the decision. This was not done. W. R. Castle, Esq., counsel for defendant, moves that he be now allowed to file his bill of exceptions. J. M. Monsarrat, for plaintiff. W. R. Castle, for defendant. This is objected to by plaintiff’s counsel, and finding the case on the calendar of this term, he moves that it be struck therefrom. The affidavit in support of Mr. Castle’s motion shows that he has suffered from ill health during a considerable portion of the time since the judgment, that the Justice presiding allowed him ten days further time, after his return to his office at the close of his illness, within which to present his exceptions; that he completed them early in March, and that the time since this has been largely consumed by counsel for plaintiff in examining the bill, and that deponent has been confined to his house more or less of the time by illness. We think the deponent is mistaken in the view that the approval of opposing counsel must be obtained before presenting the bill to the Justice. The Justice will not ordinarily settle and sign a hill until opposing counsel have had a reasonable opportunity of being heard upon its correctness, but delay for this purpose beyond the ten days must be allowed by- the Justice after, and not before, the bill has been presented. Illness of counsel, such as to keep him altogether from professional work, is not shown in this case, and we think no good cause is shown why the rule has not been complied with. The case is ordered struck from the calendar.