Chateaugay Ore & Iron Company

A petition was filed in this court by the Chateaugay Ore & Iron Company, on the 8th of October, 1888, praying this court to issue a writ of mandamus to the Honorable NATHANIEL SHIPMAN, district judge of the district of Connecticut, assigned to hold, and who held, the circuit court of the United States for the Southern district of New York, to settle a bill of exceptions according to the truth of the matters which took place before him on the trial of an action at law it that court, brought by Theodore A. Blake agains the Chateaugay Ore & Iron Company; and to sign the same, when so settled, as of the 10th of April, 1888, that being the day when such bill of exceptions was submitted to him. On the 15th of October, 1888, this court made an order that cause be shown, by Judge SHIPMAN, and by the plaintiff in the suit, on the 12th of November, 1888, why a writ of mandamus should not issue as prayed in the petition. The plaintiff showed cause, in answer to the petition, and appeared by counsel; but no cause was shown by Judge SHIPMAN, although the order was served on him personally on the 18th of October, 1888. We are therefore left without any authoritative statement from the judge as to the grounds on which he declined, as he did, to settle and sign a bill of exceptions, and can gather those grounds only from the statements of the petition for the writ, and of the answer of the this court to issue a writ of mandamus brought to recover the price of goods sold and delivered by the plaintiff to the defendant, which actions were consolidated into one. The trial was had before Judge SHIPMAN and a jury, which, on the 25th of January, 1888, rendered a verdict for the plaintiff for $9,574.53. The docket minute of the court of the proceedings after verdict, as first entered, showed that the court then made the following order: 'It is ordered that the defendant have forty days from January 25, 1888, within which to prepare and serve a case herein, with leave to turn the same into a bill of exceptions. It is further ordered that judgment may be entered on said verdict, and that the defendant have a stay of execution until the decision of the motion for a new trial herein.' On the 31st of January, 1888, a judgment was rendered in the action, in favor of the plaintiff, for $9,665.39, being the amount of the verdict and costs. On the 3d of March, 1888, being the thirty-eighth day after the 25th of January, 1888, the defendant served upon the attorneys of record for the plaintiff a proposed bill of exceptions. It was accepted and retained by such attorneys, and the service thereof was admitted in writing. On the 13th of March, 1888, the attorneys for the plaintiff applied to the attorneys for the defendant for 10 days' additional time within which to prepare and serve such amendments as they wished to make to the proposed bill of exceptions. In doing this, they acted upon the view that their time to prepare and serve such amendments did not expire until the 13th of March, 1888. Their application was granted, and a stipulation for 10 days' additional time was signed by the defendant's attorneys. On the 23d of March, 1888, the attorneys for the plaintiff served upon the attorneys for the defendant a paper containing 77 amendments which they desired to make to such proposed bill of exceptions. Some of such proposed amendments were agreed to by the defendant, while others were not agreed to. On the 27th of March, 1888, the attorneys for the defendant served upon the attorneys for the plaintiff a notice that the proposed bill of exceptions and proposed amendments would be presented to Judge SHIPMAN, for settlement and signature, on the 10th of April, 1888, at the United States court-rooms in the city of New York. Such notice of settlement was received and retained, without objection, by the attorneys for the plaintiff, and a written admission of the service thereof was given by them to the attorneys for the defendant.

On the 10th of April, 1888, the defendant appeared by its attorneys before Judge SHIPMAN, and moved that the proposed bill of exceptions be settled and signed. The attorneys for the plaintiff appeared and opposed the motion, upon the ground that the term of court at which the action was tried had expired on the 31st of March; that the 40-days' time allowed by the court, within which to prepare and serve a bill of exceptions, had also expired; and that the plaintiff was out of court, and the court had no longer any jurisdiction over him. The motion was continued until the next day, when, both parties again appearing, Judge SHIPMAN announced his decision, sustaining the objections made on behalf of the plaintiff, for the reason, then stated orally by him, that the term of the court at which the action was tried had expired, and the 40 days originally allowed by the court had also expired, and no order had been made, or consent given by the plaintiff or his attorneys, extending the time for signing the bill of exceptions beyond the term at which the cause was tried, and no very extraordinary circumstances were shown in the case to justify the court in entertaining the application; so that, under the rule laid down in the case of Muller v. Ehlers, 91 U.S. 249, the application of the defendant for the settlement and signing of the bill of exceptions must be denied. On the denial of such motion, and on the 11th of April, 1888, the court made an order, entitled in the cause, which, after reciting as follows: 'In this case, at the October term, 1887, of this court, after judgment upon the verdict for the plaintiff, a stay of forty days, and until the decision of any motion for a new trial upon a bill of exceptions, having been granted, and the said forty days and the said October term of this court having passed, and no proper foundation by bill of exceptions having been taken by the defendant to move for a new trial,'-ordered that such stay of execution be vacated. On the 17th of April, 1888, the court, after hearing both parties, made an order amending the docket minute of the proceedings after verdict, and the judgment roll founded thereon, by striking out, in such docket minute, everything after the words 'it is ordered,' and inserting the following: 'Mr. Kellogg moves orally to set aside the verdict as against evidence, and for a new trial, upon a bill of exceptions to be thereafter drawn. The court overruled the motion to set aside the verdict, and denied the same, and ordered judgment for plaintiff upon the verdict to be entered, and that the defendant have a stay of forty days to prepare and serve its bill of exceptions, and a further stay until the decision of such motion for a new trial upon said bill of exceptions.' The same order directed that the order of April 11, 1888, be resettled and entered, with the following recital: 'In this case, at the October term of this court, and on the 25th day of January, 1888, after verdict for the plaintiff, counsel for the defendant having orally moved for a new trial, upon a bill of exceptions to be thereafter drawn, and the court having then ordered judgment for the plaintiff to be entered on said verdict, and that a stay of proceedings upon the judgment for forty days, and until the decision of said motion, be granted to the defendant, and the said October term of this court having ended on the 31st day of March, 1888, and the said forty days having elapsed, and no bill of exceptions having been presented to or allowed by the court, and there being no bill of exceptions upon which said motion for a new trial is to be based;' and with a direction 'that the said stay of proceedings so granted be vacated and set aside.' Judge SHIPMAN was duly designated to hold the circuit court for the Southern district of New York for two weeks, beginning on the 16th of January, 1888. The session of the court held by him terminated on the 27th of January, 1888, and during the time from that day until the first Monday of April, 1888, which was the 2d of April, when the April term of that court began, Judge SHIPMAN was assigned to hold no court within the Southern district of New York, and he was not at any time between the 27th of January, 1888, and the 2d of April, 1888, within the Southern district of New York for any official purpose. A writ of error to remove the case to this court was allowed, on a bond approved to operate as a supersedeas, and a citation was served. A transcript of the record was filed in this court on the 8th of October, 1888. The foregoing facts are stated partly from the papers in the application for the mandamus, and partly from the contents of such record.

F. E. Smith and Edmund Wetmore, for petitioner.

R. D. Mussey, for respondent Judge SHIPMAN.

L. E. Chittenden, for respondent Blake.

[Argument of Counsel from pages 549-551 intentionally omitted]

BLATCHFORD, J.