Western Dredging & Improvement Co. v. Heldmaier

JENKINS, Circuit Judge (after stating the facts). Before the amendment of section 953, Rev. St., by the act above quoted, it was settled that the allowance and signing of the bill of exceptions can only be done by the judge before whom the case was tried. Malony v. Adsit, 175 U. S. 281, 20 Sup. Ct. 115, 44 L. Ed. 163. The amendment permits such allowance and signing by another judge thereafter holding the court when the judge before whom the cause was tried is, “by reason of sickness, death or other disability,” unable to allow 'and sign the bill of exceptions. Here the signing judge certified that the certificate was made by him and attached “in the absence of the trial judge from the circuit.” Is such absence from the circuit a disability, within the meaning of the statute ?' It is an accepted canon in the construction of statutes that “when particular words are followed by general ones the latter are to be held to apply to persons and things of the same kind as. those which precede.” Potter, Dwar. St. 236, 292. Thus, in Chegaray v. Jenkins, 3 Sandf. 409, and Same v. Mayor, 13 N. Y. 220-228, the statute in question exempted from taxation “incorporated academy or other seminary of ■learning,” and it was held that the exemption from taxation was limited to incorporated seminaries. In Cleaver v. Cleaver, 39 Wis. 96, 20 Am. Rep. 30, the statute saved a devise or legacy to “any child or other relation of the testator” in case of the death of the devisee or legatee before the testator. It was held in an elaborate opinion by [125] Chief Justice Ryan that the word “relation” includes only relations by consanguinity. In the case at bar the statute authorizes the allowance and signing of the bill of exceptions by a judge other than the trial judge only in case of “death, sickness or other disability” of the trial judge. Noscitur a sociis. The term “other disability” means disability of like character to death or sickness, not a disability arising from temporary absence from the district or circuit, if, indeed, legal disability could arise by reason of absence from the district. The statute means a physical or mental disability arising from either death, sickness, insanity, or disorder of like character by reason of which the judge was disabled from the performance of judicial function. The mere absence from the district or circuit in which the case was tried is not such a disability. If it be needful that the trial judge should be personally present in the district to allow and sign the bill of exceptions, his presence should be procured. In the district from which this cause comes it is usual to procure the attendance of the district judges from other districts to hold court in aid of the despatch of business. It is not supposable that the statute designed that during the temporary absence of the trial judge from the district the difficult and delicate duty of correctly stating the conduct of trials held by him should be devolved upon a judge wholly uninformed in respect thereto. The statute sought to provide for an emergency where there would be a failure of justice unless the extraordinary remedy could be employed. We are of the opinion that the statute should not be extended to the case before us, and that no legal cause is stated for the allowance and signing of the bill of exceptions by a judge other than the trial judge.. The motion is allowed.