Action in circuit court of the District of Columbia by William B. Bowie against Frank Hume on a contract of indorsement. Upon the death of plaintiff, Anne H. Bowie, executrix, was substituted as party plaintiff. Upon her death, Richmond Irving Bowie, administrator de bonis non, with the will annexed, was substituted. Verdict for defendant. Plaintiff took an appeal to the supreme court, general term, but the justice who had heard the cause died without settling the bill of exceptions. Thereupon plaintiff moved in the circuit court to set aside the verdict and for a new trial. By agreement this motion was heard in the general term, and was there granted. Defendant brings error. Heard on motion to dismiss the writ of error for want of jurisdiction. Granted.
Statement by Mr. Chief Justice FULLER:
This was an action brought by William B. Bowie in the supreme court of the District of Columbia against Frank Hume, as indorser upon a promissory note. The defendant pleaded to the declaration; issue was joined; and on the trial of the cause a verdict was rendered May 25, 1888, in favor of the defendant. During the trial various exceptions were reserved to the rulings and instructions of the court, which were duly noted at the time by the presiding justice upon his minutes. A motion for new trial was made and overruled June 2, 1888, and an appeal to the general term was thereupon taken, and a bond on appeal duly executed and approved.
The record discloses that on January 3, 1888, the court in general term entered an order directing that, in addition to the circuit court to be held by Mr. Justice Hagner on the fourth Monday of January, 1888, a second circuit court should be held at the same time by Mr. Justice Merrick, the court to be held by Mr. Justice Hagner to be known as 'Division No. 1,' and the court to be held by Mr. Justice Merrick to be known as 'Division No. 2.' On April 27, 1888, the court in general term ordered that the circuit courts then being held in divisions Nos. 1 and 2 should be continued further by the same justices through the May term thereof. This case was tried in the circuit court, division No. 2, by Mr. Justice Merrick; verdict returned May 25th; motion for new trial overruled June 2d; appeal prayed June 5th; bond approved June 12th. On July 14, 1888, an order was entered by that justice providing that 'the May term of the circuit court, division number two, is hereby entered as extended, that the bill of exceptions not yet filed may be settled, to wit: [Here follow names of cases, including this case.]' On the same day, in division No. 1, the court ordered 'the term of this court extended for the purpose of setting bills of exceptions and case in the following cases: [Cases named;] and thereupon the May term adjourned without day, except as above stated.'
On January 24, 1889, an order was entered by the general term, assigning the justices to serve for the year 1889, as follows: 'First, for the general term, Justices Hagner, James, and Merrick; second, for the circuit court, Chief Justice Bingham; third, for the equity court and orphans' court, Justice Cox; fourth, for the district court, Justice James; fifth, for the criminal court, Justice Montgomery.'
April 8, 1889, the death of William B. Bowie was suggested, and Anne H. Bowie, executrix, was substituted as party plaintiff, and, on April 23d, she filed her motion to set aside the verdict and judgment, and to grant a new trial, 'because the bill of exceptions containing the exceptions reserved on the trial of the cause cannot be settled, signed, and sealed as required by law, the justice of this court, who presided at the trial of this cause, (in divisions No. 2, May term, 1888, of this court,) having departed this life without having settled or signed and sealed the same.'
Due notice of this motion was given, and it was finally called up on June 8, 1889, before Chief Justice Bingham, holding a special term and circuit court, and 'at the request of both parties, by their respective attorneys, was directed to be heard in the general term in the first instance.' Subsequently the death of Anne H. Bowie was suggested, and Richard Irving Bowie, as administrator de bonis non, with the will annexed, substituted.
The motion in question was heard upon certain certificates and affidavits, which are set forth in a bill of exceptions taken upon the disposition of the motion. It appeared that the bill of exceptions preserved on the trial was prepared by counsel for plaintiff, and submitted to counsel for defendant, but that they could not settle it by agreement, and that, before it was considered by the justice who presided at the trial, the latter became ill, and afterwards, on February 6, 1889, died, leaving it unsettled.