Easterby v. Larco

By the Court, Currey, J. This action was tried and a verdict rendered therein in favor of the plaintiff, on the 5th day of June, 1863, and judgment was entered on the verdict on the day following—when the Court, on the application of defendant’s counsel, granted to the defendant twenty days within which to file a statement to be used on a motion for a new trial. On the Sth of the same month the defendant gave to the plaintiff and his attorneys [180]notice of his intention to move for a new trial of the cause and to set aside the judgment rendered. Some time afterward the respective parties, by their attorneys, entered into a stipulation in writing, to the effect that the minutes of the testimony and proceedings in the case, taken by the Court Reporter on the trial, might be used in the place and stead of a statement on motion for a new trial, provided the defendant then had the right to file a statement or to make the motion, and had not waived such right; and it was declared by such agreement that it was not intended by it to waive any default committed, but to leave the rights of both parties as they were at that time. This stipulation was dated the 27th and filed on the 30th of June, 1863, in the office of the District Court, in Napa County, where the action was commenced and tried.

It will be joresumed, in the absence of anything appearing to the contrary, that the testimony in the case, with the rulings of the Court, and the exceptions taken on the trial, were filed in the office of the Clerk of the Court within five days thereafter (Laws of 1861, p. 497,) and that the same became, at the time the stipulation of the parties was filed, the statement to be used on the motion whereof notice had been given, provided the time within which a statement for such purpose could properly be filed had not fully expired.

When the application for a new trial came on to be heard, the attorney for the plaintiff objected that the Court could not entertain the motion because the defendant had not filed any statement of the grounds on which he intended to rely in support thereof. The Court overruled the objection, and heard the application upon the stipulation filed and the minutes of the evidence and proceedings taken by the Reporter, and the rulings of the Court and the exceptions referred to in such minutes, and thereupon made an order denying the motion for a new trial. From this order and the judgment the defendant in due time ajopealed.

The respondent, by his counsel, still insists upon his objection made on the hearing of the motion, and we think the objection well taken; because, by the terms of the order made