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SHEPPARD V. WILSON, 47 U. S. 260 (1848)
U.S. Supreme Court
Sheppard v. Wilson, 47 U.S. 6 How. 260 260 (1848)
Sheppard v. Wilson
47 U.S. (6 How.) 260
The statutes of Iowa provide a mode for taking bills of exceptions by directing that they shall be tendered to the judge for his signature during the progress of the trial, although judges may, and often do, sign bills of exception nunc pro tunc after the trial.
Such is also the English practice under the Statute of Westminster 2, and such is the practice recognized by this Court.
Therefore, where a bill of exceptions was signed two years after the trial, the Supreme Court of Iowa was right in striking it out of the record.
Where, after verdict, a motion was made for a new trial, which was held under a continuance, and an entry was afterwards made that the motion was overruled and judgment entered on the verdict, but at the time of such entry and judgment the court was not legally in session, it was no error in the court, at a subsequent and regular term, to treat the entry thus irregularly made as a nullity, to decide the motion, and enter up judgment according to the verdict.
The difference between this case and that of Bank of the United States v. Moss, 6 How. 31, pointed out.
A continuance, relating back, may be entered at any time to effect the purposes of justice.
This was an action commenced in the District Court of Scott County, in the Territory of Iowa, by Wilson against Sheppard and others, for a breach of a contract for hiring a steamboat. It is not necessary to state the facts in the case or any other circumstances than those upon which the decision of this Court turned.
On 7 October, 1841, the cause came on for trial in the District Court of Scott County, when the jury found a verdict for the plaintiff, and assessed his damages at $1,837.50.
A bill of exceptions, containing a recapitulation of the evidence
upon both sides and sundry prayers to the court, is found in its proper place in the record; but the date of its signature by the judge is 21 December, 1843, whereas the trial took place in October, 1841.
A motion for a new trial was made by the counsel for the defendants upon several grounds, which it is not necessary to specify.
In April, 1842, the court commenced in Scott County on the 4th, and in Clinton county, in the same district, on the 11th. But on 12 April, whilst the court was in session in Clinton County, the following entries were made in Scott County:
"JOHN WILSON v. JOHN C. SHEPPARD et al. -- Assumpsit"
"And now come the parties by their attorneys, and the defendants move for judgment on the motion for a new trial, made and argued at the last term of this Court in this cause, and held under advisement until the present term."
"It is considered by the court that said defendants take nothing by their said motion, and thereupon the plaintiff moves the court for judgment upon the verdict rendered by the jurors aforesaid at the last term of this court in this cause. It is therefore considered by the court that the plaintiff recover of the defendants the said sum of eighteen hundred and thirty-seven dollars and fifty cents, his damages aforesaid in form aforesaid assessed, besides his costs by him about his suit in this behalf expended, and that execution issue therefor."
"And thereupon the said defendants, by their attorney, pray an appeal, which was allowed."
Whether or not this appeal prevented the District Court of Scott County from correcting the erroneous entry was one of the questions before this Court.
At October term, 1842, the following proceedings took place in the district court of Scott County:
"Plaintiff's Motion for Judgment"
"And afterwards, to-wit, on the third day of October in the year of our Lord 1842, the said plaintiff filed in the court aforesaid the following motion for judgment in this cause, to-wit:"
"WILSON v. SHEPPARD AND OTHERS"
"And now, at this day, October term, 1842, comes the said plaintiff, by Mitchell & Grant, his attorneys, and moves the
court to enter up judgment in this cause, as of the last fall term of this Court."
"MITCHELL & GRANT, for Plaintiff"
"And afterwards, to-wit, on the 7th day of October, in the year last aforesaid, the following proceedings were had, to-wit:"
"WILSON v. SHEPPARD AND OTHERS -- Assumpsit"
"This day came the said plaintiff, by his attorney, and it appearing to the court that at a previous term of this Court, to-wit, the October term, 1841, the issue previously joined in this cause was submitted to a jury, who, after hearing the evidence and arguments of counsel, returned into court the following verdict, to-wit, they find the issue for the plaintiff and assess his damages at the sum of eighteen hundred and thirty-seven dollars and fifty cents."
"Appeal prayed by Defendants"
"Whereupon a motion was made by the attorney for defendants for a new trial herein, which motion was at said October term taken under advisement by the court, and it further appearing to the court that this court has not at any time since decided said motion, but that said motion was continued under advisement until the present term, that the order of continuance at last term was not entered of record. It is therefore ruled that said order of continuance be entered 'nunc pro tunc,' and the court, having now fully considered the said motion for a new trial, doth overrule the same. And it is further considered by the court that the plaintiff have and recover of and from the said defendants the said sum of eighteen hundred and thirty-seven dollars and fifty cents, his damages in manner and form aforesaid assessed, together with his costs by him about his suit in that behalf expended, and that a special execution against the property attached issue therefor; thereupon the defendants prayed an appeal to the supreme court."
To this judgment of the district court the counsel for the defendants took a bill of exceptions with a view to carry the case up to the Supreme Court of Iowa.
In January, 1844, the case came before the Supreme Court of Iowa, when the counsel for Wilson moved to strike from the record, and reject from the consideration of the court the bill of exceptions filed and dated in December, 1843; which motion the court sustained.
The counsel for Sheppard then moved for a mandamus, directed to the judge of the District Court of Scott County, requiring
him to sign and seal, nunc pro tunc, the bill of exceptions tendered on the original trial. But the court refused to grant the mandamus.
After some other proceedings which it is not necessary to state, the Supreme Court of Iowa, in January, 1845, affirmed the judgment of the District Court of Scott County.
To review this affirmance, a writ of error brought the case up to this Court.
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