Linn v. Twist, Eddy & Co.

Heydenfeldt, Justice, delivered the opinion of the court. Wells, Justice, concurred.

The 195th section of the Practice Act, referring to the statement to be made in support of an application for a new trial, says: “ Such statement, when containing any portion of the evidence of the case, and not agreed to by the adverse party, shall be sealed by the Judge, upon notice.”

It is now insisted, that because the statement in this case is-not sealed by the Judge, it must be inferred that it was agreed to. [90]To this argument I cannot assent. It is very clear, that to make the statement good, it must either be agreed to or it must be sealed by the Judge; and one of these conditions must be shown affirmatively.

That it is not sealed by the Judge, instead of proving that it was agreed to by the parties, imposes on the appellant the necessity of showing that it was agreed to; and as the record does not show this, the statement must be rejected.

Any other practice than that here indicated, would be loose and dangerous. No mode is pointed out for a party to disagree to a statement, and the burden ought to be put on the one who desires to make it perfect. A statement may be filed which would be a distortion of the case as really proved; this of course would not be agreed to, nor would the Judge seal it as correct; and yet, being on file as the statement of the party for the purpose of a new trial, it would be copied into thb record, and sent for adjudication to this court.

The judgment must be affirmed.