Skinner v. Horn

ANGELLOTTI, J.

The superior court having granted a motion for a new trial as to defendant B. H. Pendleton, the plaintiff appealed from such order, and has filed in this court a transcript on appeal containing the judgment-roll, the settled statement used on the motion for a new trial, a copy of the order granting a new trial, and of the notice of appeal.

Respondent, Pendleton, has suggested to this court that the transcript is defective in that it does not contain certain specified affidavits which, it is alleged in the affidavit filed herein on his behalf, were read, used, and considered by the trial court upon the hearing of his motion for a new trial, as well

[279]

as upon the hearing of a motion made by him

for

leave to amend his motion for a new trial, and his motion for an order vacating and setting aside the judgment, and has, by motion, asked for an order directing the clerk of the superior court to certify to this court, as a part of the record on appeal, the said affidavits.

It is not suggested that said affidavits have been incorporated in a bill of exceptions, or in any way authenticated as having been used on the hearing in the court below, and it was admitted on the argument that they had not been incorporated in a bill of exceptions. Under these circumstances it is clear that even if the affidavits had been set forth in the transcript, or if they should be now certified by the clerk of the superior court to this court, they could not be considered by the court on the appeal from the order granting the motion for a new trial.

It is now well settled that affidavits used on a motion for a new trial cannot be considered by this court on an appeal from the order made on such motion, unless they are incorporated in a bill of exceptions. Bule XXIX of this court provides: “In all eases of appeal to this court from the orders of the superior courts, the papers and evidence used or taken on the hearing of the motion must be authenticated by incorporating the same in a bill of exceptions, except where another mode of authentication is provided by law.” There is no other mode provided by law for the authentication of affidavits used on the hearing of a motion for' a new trial, and a bill of exceptions is therefore the exclusive method by which such affidavits may be presented for the consideration of this court.