State ex rel. Gaines v. Judge of the Second District Court

Merrick, C. J. This is an application for a rule to show cause why a writ of mandamus should not issue to compel the Judge of the Second District Court of New Orleans to sign a bill of exceptions. The relator is the testamentary executor of Simeon V. Sicloles, deceased. In his capacity of executor, he made an application for an inventory which the Judge, after considering for some time, granted, but at the same time entered therewith an order appointing an attorney and counsellor-at-law to represent the absent heirs; that so soon as advised of the entry of the order and the ear of the court could be obtained in order to show his dissent from that portion of the decree, he tendered the Judge a bill of exceptions for signature, wherein he stated that the appointment was made without any prayer to that effect by petitioner, and that he excepted to the same as unnecessary, there being no heirs absent and unrepresented, the will instituting the city of New Orleans as heir, and that the court overruled the exception, and that thereupon the counsel tendered his said bill of exceptions to be signed. The object of a bill of exceptions is to place on the record and make part thereof something which was done under the order of the court, during- the progress of the cause, which would not otherwise appear, in order that the question of law arising from the ruling of the Judge, in the matter excepted to, may be reviewed by the appellate court. It should be taken or reserved at the time the act objected to occurs. If not then reserved, the Judge cannot be compelled to sign a bill of exceptions at a subsequent day. If the Judge of the lower court had seen-fit to embody in a bill of exceptions what occurred before him when the party was first advised of the order, such as a motion to set it aside and his refusal or the like, it would not have been improper; but in the hill tendered, it seems to us something more is stated than the Judge was bound to admit (viz), that the executor excepted to the appointment as unnecessary, &c., which would imply that the objection was made at the time of the appointment of the attorney for the absent heirs. From the showing of the relator, we are satisfied that the record, as it now stands, declares truly what occurred at the date of the entry complained of. As no objection was made at the time of the entry of the order, the Judge cannot be called upon now to sign a bill of exceptions which implies contrary to the fact that an objection was made to the order at the time it was entered. The application for the rule is dismissed at the costs of the applicant.