Cripe v. Unangst

ALLEN, P. J.

The affidavit in support of the application discloses that an action was tried before the respondent judge wherein a judgment was rendered against the defendant for the sum of one thousand five hundred dollars, the action being one for damages alleged to have been occasioned by defendant’s alienating the affections of plaintiff’s husband. A copy of the findings are attached to the petition, from which it appears that the only issues presented, heard, or determined were as to the marriage of plaintiff and the enticing away of plaintiff’s husband through malicious statements and by arts and persuasions, by reason of which the damage resulted; that defendant in due time served his notice of intention to move for a. new trial upon the ground that the evidence did not justify the said decision in favor of plaintiff, and because of errors of law occurring at the trial and duly excepted to, which motion, it was stated therein, would be made upon a statement of the case thereafter to be prepared by the petitioner. Petitioner alleged that he duly prepared a statement on such motion which contained specifications of the particulars in which it was alleged the evidence was insufficient' to justify the findings of the court, and also the particular errors in law occurring at the trial; that this proposed statement was served upon plaintiff’s counsel, who within due time proposed amendments thereto, which amendments consisted simply of a motion to strike out all of the testimony contained in the proposed statement, and asking for an order that the evidence taken down by the court reporter, either by questions and answers or in narrative form, be substituted. Upon the date set for settling the statement petitioner’s counsel ob

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jected to a consideration of the proposed amendments for the reason that the same were not such amendments as were authorized by our statute. The court, however, overruled such objection and made its order that said amendments as proposed by plaintiff should be allowed, and refused to settle any other bill. It is averred that the said transcription of the testimony and proceeding ordered by the court would cost in excess of three hundred and seventy-five dollars and would embrace more than seven hundred pages of typewritten matter; that plaintiff is insolvent and cannot be compelled to pay any portion of such transcription fees. Respondent by his verified return alleges that the proposed statement contained only twenty-seven pages of the evidence and the same was incomplete, incorrect, and misleading; that it would be a practical impossibility to propose concrete and definite amendments to said alleged statement of defendant for the reason that the same was meager, confusing, misleading, and intermingled; that much of the testimony omitted from said proposed statement is material; that the contradictory testimony was entirely omitted, and that the only way in which a statement intelligible in form can be presented is through a narrative report of the proceedings; that such time has elapsed since the trial that respondent cannot from memory and recollection, without the aid of a transcript of the record, state the exact wording and form of such amendments as are necessary to fully and fairly present the record of said cause, and for that reason he has refused to settle any statement other than such as ordered.