Van Valkenburg v. Rogers

Campbell J. We think there is no ground for the motion. The bill of exceptions was regularly signed, and the representatives' of Rogers received full notice, and had an opportunity of presenting their amendments, if they had any. There is no claim that the bill is not correct in fact, and the judge’s signature is of itself evidence of this, as the bill must necessarily relate to matters on which he personally passed. In ordinary cases, and where the judge remains in office, a bill which is signed by him, without notice to the representatives of a deceased party, would, of course, be open to amendment, upon a proper application; but, as notice is all [326] that is necessary to protect their rights, and as they have had it in this case, and attended under protest and proposed amendments to the bill, there is -no ground of complaint. But here the judge is now out of office. And we held, in Scribner v. Gay, 5 Mich. 511, that a bill signed could not be remanded for amendment after the judge who allowed it had ceased to hold office, but must stand as correct; and we there referred to the practice, which has been approved, of granting new trials, where a party by such change has been, without fault, deprived of his bill. The granting of a new trial only puts the parties to the necessity of having a new hearing, and does not produce any evil beyond inconvenience, and is a better alternative than depriving an innocent party of a legal ground of redress in a court of review. But here we do not think there has been any irregularity, and Yve do not regard our action as in any way extending favor or lenity. We sustain the bill as regular. We also think the writ of error was regularly sued out and returned. By the common law practice, a scire facias acl audiendum errores was necessary after the writ was returnable, and under that the representatives of a deceased party could be brought in. We think that course - would be regular here. But, inasmuch as in ordinary cases we have provided a more summary practice, by filing and serving an assignment, we propose, now that the matter has been brought to our attention, to adopt rules which will apply to such cases as the present, and the parties can, if they please, follow them, instead of resorting to the somewhat inconvenient writ of scire facias. The proceedings, however, being regular throughout, the motion must be denied. The other Justices concurred.