Mueller v. Ehlers
91 U.S. 249 (1875)

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U.S. Supreme Court

Mueller v. Ehlers, 91 U.S. 249 (1875)

Mueller v. Ehlers

91 U.S. 249

Syllabus

Where the court below rendered judgment upon a finding, and at the next term, in the absence of any special circumstances in the case, and without the consent of parties or any previous order on the subject, allowed and signed a bill of exceptions, and directed it to be filed as of the date of the trial, held that the bill, although returned with the record, cannot be considered here as a part thereof.

The parties to this suit, by stipulation in writing filed with the clerk, waived a jury, and submitted to a trial by the court, which was had at the October Term, A.D. 1872, when the case was taken under advisement. At the next term and on the 28th April, 1873, the court found generally for the plaintiff, whereupon defendants moved for a new trial. This motion was continued until the next term, when, on the 15th July, it was overruled, and judgment entered on the finding.

On the 25th July, 1873, this writ of error, returnable on the second Monday of October then next ensuing, was sued out and served, and on the same day a supersedeas bond was approved and filed. The citation was filed Aug. 4, 1873.

Down to this date, as appears by the record, a bill of exceptions had not been signed or allowed, nor time given, either by consent of the parties or by order of the court, to prepare one. In this condition of the case, the court adjourned for the term.

Page 91 U. S. 250

At the next term, on the 27th October, 1873, and after the return day of the writ of error, a bill of exceptions was signed and filed by order of the court, as of the 28th April, 1873. It nowhere appears from the record that this was done with the consent of the plaintiff or even with his knowledge. It is for errors appearing in this bill of exceptions alone that a reversal of the judgment is asked.

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