
    State v. The Judge of the Second District Court—Ex rel. J. A. D’Hémécourt.
    A mandamus will not bo granted to compel tlie Judge of the lower court to sign a bill of exceptions when it does not appear that the hill of exceptions had boon exhibited to the adverse party previous to its being presented to the court.
    ON an application for a mandamus to the Judge of the Second District Court of New Orleans.
    
      C.'Redmond, for relator.
   Merrick, C. J.

The present proceeding is a petition for a writ of mandamus, to compel the Judge of the Second District Court to sign two bills of exception in causes 11,157 and 13,300 on the docket of that court.

The principal ground for the application is set forth in the following allegations in the petition, viz-:

That the transcripts of appeal are incomplete, by reason of the refusal of the Judge a quo to sign the annexed bills of exception, A and B, tendered to him on the 3d June, 1858, the day after the trial at the opening of the court, in pursuance of a practice, if not of a positive rule of court which forbids any further postponement ; that his honor below refused to examine said bills, or allow the same to be filed until they should have been submitted to the adverse counsel; that without admitting the binding effect of this requirement, which, on the contrary, petitioner believes to be incompatible with the law and the obvious rights of parties litigant; he nevertheless endeavored to comply with the same, and informed the respective counsel as soon as possible that his exceptions had been delivered to the Judge who required their opinion of, before certifying, the said bills óf exception, and, that petitioner again and a third time applied to the said Judge of the said court to sign his said bills, but was still met by the same objection, which petitioner had used every exertion to meet and obviate.”

A writ of mandamus seems to be the proper remedy to resort to, where a District Judge absolutely refuses to perform his duty and sign a bill of exception which has been properly taken.

A peremptory mandamus was orded to compel the District Judge to sign a bill of exception in the case of Brousart v. Trahan’s Heirs, 3 M. R. 714, and a similar mandate is expressly allowed by Article 899 of the Code of Practice.

But, as the application for a writ of mandamus implies a refusal on the part of the District Judge to perform the duties of his office, the allegations in the petition ought to show affirmatively, and not by implication, the neglect of duty, the subject of complaint.

In the case presented by the relator, it appears that he presented to the District Judge his bills of exception drawn by his counsel, and left them in the hands of the Judge, and that the opposite counsel were informed by him, that the bills of exception, so prepared, were delivered to the Judge, who required their opinion of the same. The opposite counsel, therefore, were called upon to go before the Judge and examine the bills of exception and give their opinion of the same, some time (how long does not appear) after the case had been tried.

The bills of exception ought to have been exhibited to the adverse counsel before they were deposited with the Judge.

Art. 489 of the Oode of Practice is in these words, viz :

This bill of exception must be exhibited to the adverse party, who may object to any error in the statement therein contained : it shall then be presented to the court, who, after correcting it, if erroneous, shall sign the same, and direct the Olerk to file it among the records of the suit.” . ".

It was, therefore, clearly within the discretion of the District Judge to refuse to sign the bills tendered until they had been exhibited-to the adverse counsel.

The information conveyed to them that the Judge had the bills, was not a compliance with the law.

It is, therefore, ordered, that the petition in this cas.e be dismissed, at the costs of the relator.  