WHALEN V. SHERIDAN.
661
WHALEN
v.
SHERIDAN.
(Circuit Oourt, 8. D. N6'lD York.
October 5, IS80.)
1.
PRACTICE-BILL OF EXCEPTIOXs-RULE OF DILIGENCE.
Poverty or pecuniary embarrassment is not a sufficient ground for a motion for leave to file a bill of exceptions n1WC pro tunc. It is not an ., extraordinary circumstance" such as will defeat the rule of diligence in civil procedure in the federal courts. 2. REvmw IN FEDERAL CoURTS-RuLES OF PRACTICE.
The system of review on writ of error established by a statute of the United States is so far different from an appeal under the Code of New York, which provides for the review of rulings excepted to on the trial, that the provisions of the state statutes do not govern proceedings under it.
Motion for leave to file and serve a bill of exceptions nunc pro tunc. Scott Lord, for the motion. A. B. Herrick, Asst. Dist. Atty., opposed. CHOATE, D. J. The plaintiff has been allowed to renew his motion (5 FED. REP. 436) to file and serve a bill of exceptions, upon further affidavits; but I am unable to find that the additional facts now stated make out a case of extraordinary circumstances, such as is required under the authority of MuUer v. Ehlers, 91 U. S. 249, for the exercise of the power of granting the relief asked. Those facts are that after the trial of the cause the plaintiff, being unable to pay to his attorney the fees that were due to him, and which he demanded, the attorney refused to act further for him, although he continued to be the attorney of record for the plaintiff. Another counsel was employed to argue the motion for a new trial, but he did ·not assume the responsibility of the attorney in the cause, and left for Europe soon after the argument. The plaintiff himself was not aware of the expiration of the time limited for preparing and filing his bill of exceptions, and was absent in other states during part of the time that elapsed between the deci\lion of the motion for a new trial and the suing out of the writ of error; and the preparation of the exceptions was deferred and neglected, under the impression that all the voluminous testimony taken on the trial must be included, which would involve an expense far beyond the plaintiff's means. It was not determined positively by the plaintiff and his advisers to take the case to the supreme court till the idea was suggested that the review should be asked on a single point of law which is presented by the proposed bill. By that time the. time limited for filing the eXCep.
669
FEDERAL REPORTER.
tions had expired. I think it is the result of the affidavits now made, that, while the plaintiff had not entirely abandoned his purpose to go to the supreme court, he yet, mainly from want of means to pay his lawyers, failed to have his case properly looked after, so as to have the necessary measures taken to make his appeal effectual, so far as concerned a review of the rulings upon the trial, in case he should finally be able to make arrangements to prosecute a writ of error. Like many other cases where poverty leads to the neglect or abandomnent of the a.ppointed means of redress for possible wrongs sustained, this case has elements which appeal to the sympathies of the court, butthe plaintiff cannot be released in the mode proposed consistently with the rules adopted by the federal courts, not without creating a precedent which will be of the most embarrassing character. The real and only excuse, as it seems to me, that is offered for the neglect of the appointed mode of redress, is, after all, the poverty and financial embarrassment of the plaintiff. If this is allowed to be an "extraordinary rircumstance," within the rule declared by the supreme court in Muller v. Ehlers, the inquiry will be open in every such case as to the extent of the plaintiff's financial embarrassment. Want of means is, alao,easily sworn to, and, in most cases, difficult or impossible to disprove. Thus, the rule of diligence, which, for wise reasons is intended to be rigid, will be wholly broken down. Poverty or pecuniary embarrassment is not recognized as a sufficient excuse for not asserting a legal right where the rules of law require the assertion of that right with diligence. Hayward v. Nat. Bank, 96 U. S.' 618. It is that sectjon 783 of the New York Code of Civil Procedure, which authorizes the court to relieve a party in an action who has failed to take a proceeding within the time within which by law it must be taken, applies,to this case; and it is further urged that, with all the differences of form, an appeal under the Code, which includes and provides for the review of rulings excepted to on the trial, is substantially the same proceeding as a review on writ of error in the federal courts, and that, by section 914 of the Revised Statutes of the United States, tlle practice of the state courts in such a proceeding, including section 783 of the Code ,of New York, as applied thereto, is appli. cable to proceedings under writs of errors. Section 914 of the Revised Statutes only assimilates the pra0tice in the federal courts to that of the sta.te courts "as near as may be." I am still of the opinion expressed upon the former hearing, that the system of review on, writ
WHA.LEN V. SBEIUDA.N.
663
of error is so far a different system of procedure, established by a statute of the United States, that the provisions of the state statutes do not in any respect govern proceedings under it. The fact referred to, that" the rules of the state supreme court still retain the expression "bill of exceptions," (rule 34,) does not, as it seems to me, affect the question, although it may not be exactly true in view" of that fact, as stated in my former opinion, that "bills of exceptions" are unknown under the Code of New York. The point made on the part of the defendant that, after the allowance of the writ of error, the case is pending in the supreme court and not in this court, and that, therefore, this motion, which is in effect a motion to alter the record to be reviewed, should be made in the supreme court and not here, seems to me to have great weight, and to be supported by authority. Clark v. Hancock, 94 U. S. 493. ft is unnecessary, however, to pass on the question of the power of this court to grant the relief, since I am not satisfied that a case for relief is made out. But, as the plaintiff may be advised to apply to the snpreme court, the motion will be denied withont prejudice to "Such application. NOTE. The rules of the New York Code of Practice have no application {)ver writs of error and bills of exceptions in the United States courts. Whalen v. Sheridan, 5 FED. REP. 436. Notwithstanding the rule of court requir ing a bill of exceptions to be drawn up within 10 days after the trial, a ease may be excepted from its operation when it is just to do so. Marye v. Strouse, 5 FED. REP. 494. The power to reduce exceptions taken at the trial to form, and have them signed and filed, under ordinary circum. stances, to the term at which jUdgment was rendered. Whalen v. Sheridan, .s FED. REP. 436; citing MuUer v. Ehlers, 91 U. S. 251.-[ED.
664:
,EDERAL
LIEGEOIS 'D. :MCCRACKEN.·
(Oircuit Court, S. D. New York. 1. PRACTICE-DEMURRER TO COMPLAINT.
8, 1882.)
A complaint which alleges that the parol contract sued on was valid under the law of the state where it was made and to be performed, and that it was for a good consideration, is not demurrable on the ground that it does not state facts sufficient to constitute a cause of action.
On Demurrer. An action was brought on a parol contract, made by the defendant in Connecticut with the plaintiff, at the time residing there, but whom the defendant had the year before seduced in the state of California. In consideration of the seduction the defendant promised to pay the plaintiff annually during her life, for her board, the sum of $500, in monthly payments, and also such sums, not exceeding $500 a year, as should be necessary for her clothing. Payments were made by defendant for about a year, when he refused further to perform his contract. Such a contract by the laws of Connecticut, where it was made and was to be performed, was a valid contract, and the consideration sufficient in law to sustain an express promise made by the defendant to make reparation for injuries sustained by past seduction. Francis Fellowes, for plaintiff. E. J. Dooley, for defendant. BLATCHFORD, C. J. The complaint does not appear to be demurrable, as showing on its face that it does not state facts sufficient to constitute a cause of action. It sets forth that the contract sued on was a parol contract made in Connecticut, and to be performed there, and that by the law of Connecticut it was and is a valid contract in law, and the consideration for it, set forth in the complaint, was a good consideration for the promises contained in the contract. This seems to be so by the decision in Smith v. Richards, 29 Conn. 232. But, even if not so, the complaint alleges it to be so, and hence is not demurrable for the cause alleged. The defendant may answer in 20 days on payment of costs. litReported by S. Nelson White, Esq., of the New York bar.