State ex rel. Samuel v. Weiskittle

Irving, J., delivered the opinion of the Court. This appeal must he dismissed. At the trial of the cause certain exceptions were taken on the behalf of the plaintiff. They were not signed by the Judge at the time, hut he took the bills of exception as they had been prepared, for examination.

Before he had signed the same he had ceased to be Judge, by the expiration of his term of office, and the qualification of his successor. The verdict in the case was rendered on the 13th of October, 1882, and on the same day the record shows that there was a motion for a new trial filed. On the second day of December, 1882, another motion for a new trial was made, based, as we are told at bar, on the failure of Judge Gilmor to sign and seal the exceptions before he wentoutofoffi.ee. On'the same day of this motion the following agreement was tendered the exceptant by the other side, which being accepted and signed by the counsel of the respective parties, the motion for a new trial was dismissed: “It is agreed, that the bills of exception in this case shall he filed nunc fro tunc, and ’ taken as if duly signed and sealed by Judge Gilmor before .the expiration of his term of office, and the intention of this agreement is to place the plaintiff in a position with reference to said hills of exception equally as good as it could have occupied had such hills of exception been signed and sealed by Judge Gilmor during his tenure of office." The appellees have moved to dismiss the ap>peal upon the ground that Judge Gilmor having ceased to he Judge could not perform the judicial act of signing and sealing the exceptions, and that consent cannot give him the jurisdiction.

Appellant contends, that the agreement of the appellees estops them from making this motion. Appellees contend, that the right to raise this question was reserved, which not being admitted by the appellant, we are confined to the agreement as to what was intended. In it there is no reservation of such right, and it is an unequivocal waiver of all objection on-account of Judge ⁵¹ Gilmob/s disability. That disability is apparent from the very terms of the agreement, and his act being a nullity could not be aided by agreement.

If it were a mere irregularity the agreement would have been an effectual waiver, and parties would have been held to it. We regret that counsel felt justified in making the motion to dismiss in the face of their agreement, and did not leave it to the Court sua sponte to pronounce it void; but we are assured by them, that they share that regret; and that they acted under a mistaken impression of what they thought was understood by the other side, and therefore do not think it necessary to say more. We