Ordinarily the granting or refusing of a continuance is within
the discretion of the trial court, and will only be interfered with
by this Court in a clear case of abuse; but, in this case, the
assertion of error based upon the refusal to continue has some
foundation, and is not merely frivolous, so the motion to affirm is
denied.
Section 953, Rev.Stat., confers authority on, and makes it the
duty of, a judge of the federal court to settle controversies
concerning the bill of exceptions in a case tried before his
successor who is, by reason of death or disability, unable to do
so, and this applies to the judge of the District Court of the
United States for Porto Rico.
While it is the duty of plaintiff in error to obtain the
approval of the bill of exceptions by the judge who tried the case,
or, in case of his
Page 227 U. S. 101
death or disability, by his successor, there are circumstances
under which delay will be excused, and a motion to dismiss under
Rule 9 for failure to file the bill denied, so as to give the
plaintiff in error reasonable opportunity to have the bill
settled.
In this case, the trial judge having died and neither party
having moved for a settlement of the bill by his successor, and
there having heretofore been room for doubt as to whether § 953,
Rev.Stat., governs this case, the motion to dismiss is denied, but
without prejudice to renew if plaintiff in error does not within a
reasonable time seek a settlement of the bill.
Where a transcript of record has been filed for purposes of a
motion to dismiss for want of bill of exceptions, which is denied
without prejudice, the bill when settled, or the reasons for
failure to obtain its settlement, can be included in a
supplementary transcript.
The facts are stated in the opinion.
MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.
In 1911, defendant in error moved under Rule 9 to docket and
dismiss the writ of error for failure to file the record. Plaintiff
in error opposed because a bill of exceptions was yet unsettled in
the hands of the court below, and the motion was, on April 3, 1911,
denied "without prejudice to a renewal of same if case is not
docketed within a reasonable time after the bill of exceptions is
settled." Shortly thereafter, on May 3, 1911, there was filed as a
transcript a paper containing the pleadings and certain journal
entries and other documents purporting
Page 227 U. S. 102
to relate to proceedings had in the cause in the court below,
and to certain steps stated to have been taken concerning a bill of
exceptions, there being, however, no such bill in the record.
Putting out of view the statements made exhibiting the facts and
circumstances which gave rise to the reserving of an exception, and
the preparation of a bill of exceptions, and the effort to settle
the same, and looking only at the pleadings and journal entries
properly embraced in the record, the following is shown:
The suit, on November 29, 1910, was tried, resulting in a
failure of the jury to agree. On December 2, 1910, the case was set
for retrial at 10 A.M. on the following day. When the case was
called for trial, defendant asked a postponement "on account of the
short time at his disposal to prepare the defense in the case." On
this request's being denied, an exception was taken and the counsel
for the defendant withdrew. After the introduction of evidence for
the plaintiff, the jury, as instructed by the court, returned a
verdict for the plaintiff, upon which judgment was entered. It is
to this judgment that the writ of error is directed, it having been
allowed by the trial judge shortly after the trial, a supersedeas
bond having been also approved about the same time. The assignment
of errors was based solely on error asserted to have been committed
in refusing the request to continue the case. It appears also from
the record that a bill of exceptions was tendered to the court for
approval, which bill presumably contained a statement of facts
connected with the refusal of the continuance which were relied
upon to sustain the assignment of error made on that subject.
The matter is again before us on a motion to dismiss because
there is nothing within our jurisdiction to review, as there is not
bill of exceptions, or to affirm, because of the wholly frivolous
and unsubstantial character of the ground of error relied upon --
that is, the failure of the court below to grant a continuance.
Page 227 U. S. 103
It is obvious that these propositions, inherently considered,
rest upon an identical foundation (
Deming v. Carlisle Packing
Co., 226 U. S. 102),
and we come to dispose of them in that aspect, considering first
the more far-reaching of the two -- that is, the asserted frivolous
character of the error relied upon. We must, of course, approach
the subject upon the assumption that it is urged upon the
hypothesis that the record is in such a state as to justify us in
disposing of the matter. This assumption must be indulged because,
if it is not, there would be no way of testing the merits of the
contention, and it would consequently resolve itself into a mere
change in the form of stating the proposition that, because there
was no bill of exceptions, there was nothing for consideration.
Coming to test the question of the frivolity of the error relied
upon in the light of the assumption just stated, we deem it
necessary merely to outline the facts which it is insisted would
have been disclosed had a bill of exceptions been settled, as
follows: after the failure of the jury to agree, in reliance upon
what was asserted to be a practice which had prevailed from the
organization of the court, where there had been a disagreement of
the jury, to carry a case over for trial before another venire at
the following term, the witnesses for the defendant were discharged
and allowed to depart for their homes, and on the assigning of the
case for a retrial, the request for continuance was based on the
physical impossibility of bringing the witnesses back in time to be
heard, and to enable that purpose to be accomplished, a continuance
of five days was prayed and refused. Under this assumed state of
facts, we content ourselves with saying that there is no room for
holding that the assertion of error based upon the refusal to
continue was so devoid of foundation as to be merely frivolous in
character. We say this because, while the elementary rule is that
the granting or refusing of a continuance is within the discretion
of a trial court -- a discretion
Page 227 U. S. 104
which will not be lightly interfered with -- it is equally
elementary that, where it is manifest that there has been a plain
abuse of discretion, the duty to correct arises.
This brings us to the motion to dismiss, and its determination
depends on the facts concerning the alleged bill of exceptions, and
whether there has been such laches on that subject as to require a
dismissal.
The mistrial, the assignment for a retrial, the application for
a continuance, and its refusal and the reserving of an exception,
the verdict and judgment and the allowance of the writ of error and
the tendering of a bill of exceptions on the subject for
settlement, as shown by the record, have already been stated in
detail, and we need not repeat those statements. Certain is it that
the bill remained unsettled in the hands of the court when the
previous order of this Court, declining to dismiss for want of
filing of the record, was entered. Indeed, it is shown by the
record that, on the fourth of April, 1911, the day after the
previous application to dismiss because of the want of a bill of
exceptions was by this Court denied, the court below entered the
following order:
"In view of the illness of the judge of this court, it is hereby
ordered that the allowance and approval of the bill of exceptions
in the above-entitled cause, heretofore under consideration, is
hereby continued over to the approaching April term of this
Court."
It is conceded by counsel for both parties that Judge Jenkins,
who thus continued the hearing of the controversy, never further
acted upon the matter because, shortly after, he left Porto Rico
for the United States, where he remained until his death in the
following June. It is likewise conceded that the successor in
office to Judge Jenkins -- Judge Charlton -- was appointed, and
held the court from August 14, 1911, until October 7, 1911, and a
further term from October 9, 1911, until April 13, 1912. There is
also a certificate of the clerk contained
Page 227 U. S. 105
in the motion papers to the effect that no steps were taken by
anyone to procure action by Judge Charlton looking to the
settlement of the bill of exceptions. And it is the neglect during
the time stated to press for a settlement of the bill of exceptions
by Judge Charlton which forms the basis of the laches which it is
insisted requires a dismissal of the writ of error. While insisting
on laches, it is admitted (citing
Hume v. Bowie,
148 U. S. 245,
148 U. S. 253)
that, if there was no legal possibility of having the bill of
exceptions settled, and the right thereto was lost without any
fault on the part of the plaintiff in error, the duty would obtain
to grant a new trial.
Passing the consideration of whether the provisions of § 219 of
the Code of Civil Procedure of Porto Rico, copied in the margin,
[
Footnote 1] are applicable to
the District Court of the United States for Porto Rico
(
Chateaugay Iron Co., 128 U. S. 544),
and whether, if applicable, the adoption of rules on the subject
was essential to give it full efficacy, we are of opinion that §
953 of the Revised Statutes, also copied in the margin, [
Footnote 2] conferred authority
Page 227 U. S. 106
and made it the duty, if possible, of any judge of the court
below, successor in office to Judge Jenkins, to consider and settle
the controversy concerning the bill of exceptions. Although of this
opinion, we do not think our duty exacts under the circumstances of
this case that we dismiss for the want of a bill of exceptions. On
the contrary, we are of opinion that our duty is to afford an
opportunity to the parties to avail of the provisions of Rev.Stat.
§ 953, so that the record may be completed, to the end that the
merits of the writ of error may be disposed of. Briefly stated, we
reach this conclusion for the following reasons: (1) because we
think there is no just ground for treating our previous order as an
affirmative direction to seek the settlement of the bill of
exceptions from the successor in office of Judge Jenkins, because
at the time that order was entered Judge Jenkins was discharging
his duties, and in fact the order, continuing over the term the
settlement of the bill of exceptions, was made by him while the
previous motion to dismiss was here under consideration; (2)
because there was some reason for considering that the provision of
the Porto Rican Code to which we have referred did not apply to
proceedings in the court below, and there was also some
Page 227 U. S. 107
room for reasonable doubt as to whether the provisions of
Rev.Stat. § 953, governed the matter in hand, thereby rebutting the
inference that the mere failure to apply to the successor of Judge
Jenkins for a settlement of the bill of exceptions was either a
waiver of the writ of error or an election to stand upon the
imperfect record as filed in this Court, without reference to the
settlement of the bill of exceptions; (3) because the delay in the
settling of the bill of exceptions obviously, in part at least,
arose from the objection of defendant in error, plaintiff below,
who, equally with plaintiff in error, took no steps after the order
of this Court overruling the prior motion to dismiss and the death
of Judge Jenkins, to have the bill settled by his successor; (4)
because the failure of the court to instruct a verdict on the first
trial and this disagreement of the jury all serve to indicate that
the defense may not have been wholly devoid of merit, and (5)
because if the facts stated extraneous to the record concerning the
bill of exceptions, which we have noticed for the purpose of the
motion to affirm, be taken as true, it might result that a
dismissal for want of a settlement of the bill of exceptions would
occasion injustice, amounting to a possible condemnation without a
reasonable opportunity to be heard. Indeed, the admonition which
arises from this last consideration is cogently reenforced when the
subject matter to which the bill of exceptions related, the mere
refusal to grant a continuance, is taken into view, and the long
delay and presumed hesitancy which followed in settling the bill of
exceptions are borne in mind.
We shall therefore refuse the motion both to dismiss, and
affirm, without prejudice, however, to the right to renew the same
unless plaintiff in error within a reasonable time applies to and
diligently seeks the settlement of the bill of exceptions at the
hands of the successor in office of Judge Jenkins, or any judge
empowered by assignment
Page 227 U. S. 108
or otherwise to discharge the duties of a judge of the court
below. [
Footnote 3] And we
further direct that the bill of exceptions, when settled, shall be
promptly included in a supplementary transcript of record, or the
reasons for a failure to settle the bill, if the judge below finds
it impossible to do so, be certified to this Court.
Motion to dismiss or affirm denied without prejudice.
[
Footnote 1]
"A judge or judicial officer may settle and sign a bill of
exceptions after as well as before he ceases to be such judge or
judicial officer. If such judge or judicial officer, before the
bill of exceptions is settled, dies, is removed from office,
becomes disqualified, is absent from said island, or refuses to
settle the bill of exceptions, 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 orders or rules direct.
Judges, judicial officers, and the Supreme Court shall respectively
possess the same power, in settling and certifying statements, as
is by this section conferred upon them in settling and certifying
bills of exceptions."
[
Footnote 2]
"That a bill of exceptions allowed in any cause shall be deemed
sufficiently authenticated if signed by the judge of the court in
which the cause was tried, or by the presiding judge thereof if
more than one judge sat at the trial of the cause, without any seal
of the court or judge annexed thereto. And in case the judge before
whom the cause has heretofore been or may hereafter be tried is, by
reason of death, sickness, or other disability, unable to hear and
pass upon the motion for a new trial, and allow and sign said bill
of exceptions, then the judge who succeeds such trial judge, or any
other judge of the court in which the cause was tried, holding such
court thereafter, if the evidence in such cause has been or is
taken in stenographic notes, or if the said judge is satisfied by
any other means that he can pass upon such motion and allow a true
bill of exceptions, shall pass upon said motion and allow and sign
such bill of exceptions, and his ruling upon such motion and
allowance and signing of such bill of exceptions shall be as valid
as if such ruling and allowance and signing of such bill of
exceptions had been made by the judge before whom such cause was
tried; but in case said judge is satisfied that, owing to the fact
that he did not preside at the trial, or for any other cause, that
he cannot fairly pass upon said motion, and allow and sign said
bill of exceptions, then he may in his discretion grant a new trial
to the party moving therefor."
[
Footnote 3]
See the Act of Congress approved January 7, 1913,
entitled,
"An Act to Provide for Holding the District Court of the United
States for Porto Rico During the Absence from the Island of the
United States district judge, and for the Trial of cases in the
Event of the Disqualification of or Inability to Act by the Said
Judge."