United States v. Carey Same/Opinion of the Court

by Morrison Waite

United States Supreme Court

110 U.S. 51

United States  v.  Carey Same

The judgment in each of these cases was rendered after a trial by jury on the seventeenth of March, 1880, during the November term, 1879, although it was not signed until May 20, 1880. On the nineteenth of May, 1880, which was at the April term of that year, the district judge who presided at the trial signed a bill of exceptions, which sets forth that on the trial the United States offered in evidence a document, which was annexed, and purported to be a copy of an assessment made by the commissioner of internal revenue for May, 1875, to the introduction of which the defendants objected, and that the objection was sustained. The bill of exceptions the proceeds as follows: 'To which ruling of the court plaintiff excepts, and tenders this his bill of exceptions, which is accordingly signed this nineteenth day of May, 1880.' The rule is well established and of long standing that an exception, to be of any avail, must be taken at the trial. It may be reduced to form and signed afterwards, but the fact that it was seasonably taken must appear affirmatively in the record by a bill of exceptions duly allowed or otherwise. Phelps v. Mayer, 15 How. 160; U.S. v. Breitling, 20 How. 254; French v. Edwards, 13 Wall. 516; Stanton v. Embrey, 93 U.S. 555; Hunnicutt v. Peyton, 102 U.S. 354. This clearly is not such a case. There is nothing whatever to indicate that any exception was taken to the rejection of the evidence complained of until the next term after the trial was over and the judgment rendered, though not signed. Even the liberal extension of the rule granted in Simpson v. Dall, 3 Wall. 460, is not enough to reach this defect. The language here implies an exception only at the time of tendering the bill of exceptions to be signed, which was not only long after the trial, but at a subsequent term of the court.

It follows that the errors assigned are not such as we can consider, and the judgments are consequently affirmed.

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