Stein v. McArdle & Waters

GOLDTHWAITE, J. A motion is made to establish a bill of exceptions in this case under section 2856 of the Code. The affidavits, on which the application is based, show that the exceptions were not reduced to writing, and submitted to the judge for his signature, until more than twenty days after the rendition of the judgment; and as under the eighth section of the act of 17th February, 1854, (Acts 1853-4, p. 92,) the judgment after that period became final, as much so, in the language of the act, “as if the minutes of the court had been signed, and the court adjourned,” we must regard the exceptions as if they had been presented after the adjournment of the court, in which case, the judge is prohibited from signing the same, unless by the consent of the counsel in writing, when it may be signed within ten days thereafter (Code, § 2358). It is urged, however, on behalf of the application, that a state of facts is shown by the affidavits submitted, which should take the case out of the statutory rule. These facts are, that the case being under twenty dollars, and for the determination of the court without the intervention of a jury, was, after the trial, taken under advisement; that the counsel frequently applied to the judge, to learn whether he had decided the cause, and was informed by him that he had not; 563 and that a judgment was ultimately rendered by the judge without notifying the counsel, although the latter was in daily attendance upon the court. The law requires all judgments to be entered on the minutes of the court, and a recourse to them would have furnished to the counsel the necessary information. It did not devolve upon the judge, as a legal duty, to notify the counsel of his judgment; and his not doing so could therefore furnish no ground for the failure to comply with the requisitions of the statute, which, in effect, demands that the bill should be presented before the adjournment of the court. The motion must be denied.