Guardian Assurance Co. v. Quintana, 227 U.S. 100 (1913)

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Guardian Assurance Company of London v. Quintana

No. 280

Argued January 6, 7, 1913
Decided January 27, 1913
227 U.S. 100

ERROR TO THE DISTRICT COURT OF

THE UNITED STATES FOR PORTO RICO

Syllabus

Ordinarily the granting or refusing of a continuance is within the discretion of the trial court, and will only be interfered with by this Court in a clear case of abuse; but, in this case, the assertion of error based upon the refusal to continue has some foundation, and is not merely frivolous, so the motion to affirm is denied.

Section 953, Rev.Stat., confers authority on, and makes it the duty of, a judge of the federal court to settle controversies concerning the bill of exceptions in a case tried before his successor who is, by reason of death or disability, unable to do so, and this applies to the judge of the District Court of the United States for Porto Rico.

While it is the duty of plaintiff in error to obtain the approval of the bill of exceptions by the judge who tried the case, or, in case of his death or disability, by his successor, there are circumstances under which delay will be excused, and a motion to dismiss under Rule 9 for failure to file the bill denied, so as to give the plaintiff in error reasonable opportunity to have the bill settled.

In this case, the trial judge having died and neither party having moved for a settlement of the bill by his successor, and there having heretofore been room for doubt as to whether § 953, Rev.Stat., governs this case, the motion to dismiss is denied, but without prejudice to renew if plaintiff in error does not within a reasonable time seek a settlement of the bill.

Where a transcript of record has been filed for purposes of a motion to dismiss for want of bill of exceptions, which is denied without prejudice, the bill when settled, or the reasons for failure to obtain its settlement, can be included in a supplementary transcript.

The facts are stated in the opinion.