Livingston v. Miller , 7 How. Pr. 219 ( 1852 )

Mr. Hill insisted that the only remedy of the appellant was to discontinue the present appeal. He could then apply in the court below to set aside the judgment, and allow the bill of exceptions to be amended; and if the application was granted, the cause should be reheard in that court upon the amended bill, and a new judgment entered. The practical result of the present application, if successful, will be, that the cause will be heard in this court upon a bill of exceptions which the court below have never passed upon or seen. Non constat that they did not understand the law in respect to the sufficiency of the exceptions, precisely as settled by this court, and gave judgment on that ground. If so, and the bill of exceptions is hereafter amended so as to take away that ground, the judgment may be reversed here, though in strict accordance with the law when rendered. In any view of the matter the cause should be here upon the identical record which was before the court below.

The Court granted the motion of the appellant in the following form.

It being alleged on oath, on the part of the appellant, that certain questions of law were actually and distinctly presented by exceptions taken at the trial in this cause and were decided upon the bill of exceptions in this cause as settled, at the general term of the Supreme Court, on the rendering of the judgment appealed from, although the said questions do not sufficiently appear by the said bill of exceptions; and on hearing Mr. Hogeboom for the appellant, and Mr. Hill for the respondent, it is ordered that the argument in this cause be stayed until the next January term of this court, to enable the appellant to apply to the said Supreme Court in general term, for leave (in case they shall find said allegations of the appellant to be true, and shall deem it meet to grant such leave, to have said bill of exceptions resettled, as of the day of the original settlement thereof before the justice who presided at the trial of this cause, so as to present'those questions of law which were aetuallymade at the trial by exceptions there duly taken, and which, upon the said bill as settled, were passed upon at said general term; and in case the said bill shall be so resettled, it is further ordered that the return on file in this cause in this court be taken from the files to be amended accordingly, and be refiled as of the day of its original filing. And it is further ordered that the appellant do pay to the respondent ten dollars costs of opposing this motion.