Costigin v. Bond

Bryan, J., after stating the case, delivered the opinion of the Court. The twenty-second section of the fourth Article of the Constitution gave a new right of appeal. When a trial is conducted by less than the whole number of the Judges of a Circuit Court, it is competent for a party against whom [124] a decision is made to have the point or question reserved for the consideration of the three Judges in banc; and their decision is to be conclusive against him. This proceeding is in substitution of an appeal to the Court of Appeals, and makes a considerable alteration in the law on this subject. The change is not to be extended by construction beyond the terms of the Constitution. It is provided that the motion for a reservation of the point or question decided shall be entered of record during the sitting at which the decision may be made. The word “ sitting ” is not synonymous with “term” of the Court.- The exception to a ruling must properly be taken as soon as the ruling is made ; but this provision of the Constitution intended to give the party taking an exception the entire sitting of the Court (that is the whole time until the Court adjourned for the day) to determine whether he would have his appeal to the Court in banc, or to the Court of Appeals. It would be a very improvident construction of this section to hold that a party might have the whole term of the Court to make up his mind ; and we think it is not warranted by the plain meaning of the words. As the motion was not entered of record during the sitting at which the ruling was made, the Court in banc had no jurisdiction of the appeal. As the ruling of the Court in banc was made exclusively on the bills of exception, our decision refers only to them. (Decided 10th March, 1886.) Judgment reversed.