¶1The affidavits and notice of motion seem to point at nothing beyond a supposed irregularity in settling the bill of exceptions,- and as to that, the motion is sufficiently answered in the opposing papers. If it was intended to make a question, whether the statute of limitations had not run upon the writ of error, that should have been done by plea. (11 Wend. 522.) Whether the bill of exceptions has been signed by enough judges, is a question which does not arise on motion. If there is not a legal bill of exceptions, the plaintiff in error can only rely upon errors in the judgment record. As to the judge’s certificate, I am unable to see what objection the defendant in error intended to make ; of course the plaintiff in error could not know what he was required to answer. Motion denied.
2 How. Pr. 66
Keeper v. Keeper
Decided February 15, 1846
New York Supreme Court · decided 1846-02-15
<p>A question of the statute of limitations to a writ of error can be taken advantage of only by plea. (11 Wend. 522.)</p> <p>Whether a bill of exceptions has been signed by enough judges, is a question which does not arise on motion. If there is not a legal bill of exceptions, the plaintiff in error can only rely upon errors in "the judgment record.</p> <p>Where a defendant in error moves to set aside a writ of error and bill of exceptions for irregularity, in not noticing the bill of exceptions for settlement within the time required by the rules of court, he will be defeated; where the plaintiff in error shows that the attorney for defendant in error consented or did not object to go before a judge for settlement, after the time had expired.</p>
Decided 1846-02-15