Page:Federal Reporter, 1st Series, Volume 5.djvu/507

liAEYE V. STfiODSir. 495 �tions or take Biicll action aa he should be advised. No bill ôf exceptions was prepared within the time a,llowed nor at the] term in which judgment was entered. No request ior à' special finding of f&cts was made at that term. Eule a3 df this court requires ail notices of motions for nëw triale to be given within 10 days after the rendition of the decision sought to be set aside. �On the twenty-eighth of January, 1880, one B. G. Whit- man, an attorney of this court, made and served a notice of motion for a new trial. Prior tq that date, and at that time,' the only attorney of record for defendant had been and was Jonas Seely. �On Pebruary 11, 1880, a further order was made staying execution until a decision upon the motion for a new trial. The March term of this court began on the fifteenth of that month. By rule 2^ of this court a party is not required to prepare his bill of exceptions at the trial, but within 10 days thereafter the bill must be drawn up, filed, and served. At the trial the exceptions taken under the rule are to be reduced to writing and delivered to the judge. On the ninth of April, 1880, at the time the motion for a new trial came up for argu- ment, the defendant's attorneys presented and asked the judge to allow and seal as correct a document entitled "Bill of Exceptions." They also at the same time presented a paper cailed "Special Finding of Facts," and asked that it bo signed and made a part of the record. The motion for a new trial came up first regularly for hearing on the first Monday of March, and at that time the plaintiff appeared, and, with- out any objection to the notice, concented to a continuance. �Admitting, whàt is doubtless correct, that the notice was insufficient, I still am Of the opinion that this general appear- ance on the part of plaintiff must be considered a waiver of the want of due notice. In its nature it resembles the sum- mons issued at the commencement of the suit, and a general appearance is a waiver ai ail irregularities in the service of a summons. The motion being thus now propôrly before the' court, the grounds of it are to be considered. �At the trial the three principal questions discxtgsedwerci — ����