Augustus Tilden, for Petitioner.
Stevens & Van Pelt, for Respondent.
By the Court, McCarran, J.:
This is an application under section 374 of the civil practice act (Rev. Laws, 5316), in which application petitioner, Alex. McVeigh Miller, through his attorney, Augustus Tilden, Esq., petitions this court as follows:
Petitioner respectfully prays that upon such notice to respondent Hon. E. J. L. Taber and to respondent Mittie Point Miller, to be served upon her counsel, she being now in Massachusetts or West Virginia, as to the court shall seem adequate, petitioner be permitted to prove his said statement and exceptions, and that the matters required by respondent Hon. E. J. L. Taber to be stricken from said statement be permitted to stand, and that said statement be settled without the insertion of the matter required by respondent Hon. E. J. L. Taber to be inserted therein; and that petitioner have such other, different or additional relief as to the court may seem just.
The section of the statute under which this application is made, and the only section under which such an application could be made, is found in section 374 of the civil practice act, and this section must be read in connection with section 373 of the civil practice act (Rev. Laws, 5315). They are as follows:
373. An exception is an objection upon a matter of law to the decision made by a court, judge, referee, or other judicial officer, in an action or proceeding. The exception must be taken at the time the decision is made, except as provided in the next section. No exception shall be regarded on a motion for a new trial or on an appeal unless the exception be material and affect the substantial rights of the parties. (Rev. Laws, 5315.)
374. The point of the exception shall be stated and may be delivered in writing to the judge or taken by the stenographic reporter of the case, if there be one, or, if the party require it, shall be written down by the clerk. When delivered in writing or written down, as above, it shall be made conformable to the truth, or be at the time
corrected until it is so made conformable. If the judge shall in any case refuse to allow an exception in accordance with the facts, any party aggrieved thereby may petition the supreme court for leave to prove the same, and shall have the right so to do, in such mode and manner and according to such regulations as the supreme court may prescribe, or by rules impose, and such exceptions as are allowed by said supreme court shall become a part of the record of the case. (Rev. Laws, 5316.)
The provisions of the statute above quoted must not be confounded with section 392 of the civil practice act (Rev. Laws, 5334), which bears upon the refusal of a judge or judicial officer to settle a bill of exceptions. The statute reads as follows:
392. When the decision excepted to was made by a referee or any judicial officer other than a judge, the statement shall be presented to such referee or judicial officer, and be settled and signed by him in the same manner as it is required to be presented to, settled, and signed by a court or judge. A judge, referee, or judicial officer may settle and sign a statement after as well as before he ceases to be such judge, referee or judicial officer. If such judge, referee or judicial officer, before the statement is settled, dies, is removed from office, becomes disqualified, is absent from the state, or refuses to settle the statement, or if no mode is provided by law for the settlement of the same, it shall be settled and certified in such manner as the supreme court may, by its order or rules, direct. (Rev. Laws, 5334.)
After relating the facts relative to the several orders of the court appealed from, and the filing and submission of a proposed statement on appeal, and the filing and service of amendments thereto, the petition reads as follows:
That thereafter and on or about the 8th day of December, 1912, said proposed statement and proposed amendments were submitted to respondent Hon. E. J. L. Taber, as judge of said district court for settlement, and
on or about the 20th day of December, 1912, the said respondent rendered a written decision in the matter of said settlement, a copy of which written decision marked Exhibit B' is hereto attached and made a part hereof.
That by said decision petitioner is deprived of the benefit of his exceptions in said matter duly reserved, in the following particulars:
Petitioner relied and relies on the failure of respondent Mittie Point Miller to bring her motion for an order vacating default and judgment on for hearing within the six months period prescribed by law, and upon her neglect and refusal to bring the same on for hearing at the first available opportunity thereafter, and to establish his exception based on said circumstances set forth in his said proposed statement at pages 92 and 95, inclusive, the minutes of the said court showing that sessions thereof were held, presided over by Hon. Peter J. Somers, a district judge of said state, by request of the respondent Hon. E. J. L. Taber, on the 30th day of June, 1911, and the 1st day of July, 1911, both dates being within said six months period, and on September 25, 1911, and December 19, 1911, both of said last-mentioned dates being after the expiration of said six months period, and also set forth the formal requests ...