Hegeler v. Henckell

By the Court, Cürrex, J. Judgment was rendered in plaintiff’s favor on the 16th of February, 1864, and thereupon the defendant gave notice of his intention to move for a new trial. The statement to be used on the motion was filed on the 5th of March following. On the 4th of June the defendant applied to the Judge of the Court at Chambers for- an order directing the Clerk to enter in his minutes of the proceedings of the Court, as of the day when the judgment was rendered, an order staying proceedings in the cause and granting to the defendant fifteen days in addition to the time allowed by statute, within which to prepare and file a statement on motion for a new trial. This application was founded on the affidavit of the defendant’s [493]attorney, as well as upon the pleadings, proceedings and papers in the action. The defendant’s attorney deposed that when judgment was rendered he asked and obtained of the Court fifteen days in addition to the time prescribed by statute, within which to prepare and file a statement on which to move for a new trial and a stay of proceedings in the meantime. That he drew up the order and procured the signature of the Judge thereto, and placed the same in the hands of the person then acting as the Deputy of the Clerk of the Court. That the Clerk and his Deputy, either through design, accident or mistake, had neglected entering the order made. One of the attorneys for the plaintiff made a counter affidavit, in which he stated positively that the additional time granted by the Court was made orally in open Court, and that it was ten and not fifteen days; that he knew nothing of any written order signed by the Judge, and that if such an order was so signed it was different from the one announced from the bench when the application for additional time was made. He also deposed that after the statement was filed, the defendant’s attorney applied to the plaintiff’s attorney, by letter, requesting them to stipulate to waive the consequences of his having failed to file in time his statement on motion for a new trial, and that they refused to comply with such request. The Clerk of the Court deposed that the written order, which the defendant’s attorney mentioned in his affidavit, was never in his possession as Clerk or otherwise, and that after searching for it he had been unable to find it in the Clerk’s office. It was in proof by affidavits that the Deputy Clerk referred to had removed from the county.

The motion, with the objections thereto, was heard by the Judge at Chambers. Upon the argument, the Judge informed the counsel of the parties that he did not recollect the order referred to in the affidavit of defendant’s attorney, but would find the facts to be as therein alleged. At the same time the defendant moved, upon the statement filed, for a new trial, when the plaintiff objected, upon the ground, among others, that the defendant had waived his right to move for a new trial,