Morris v. De Celis

By the Court, Wallace, J.: A verdict and judgment for defendant having been rendered, the plaintiffs gave notice of their intention to move for a new trial.

The statement in support of the motion, and the amendments proposed thereto, were submitted for settlement on May 9th, 1870." On July seventh following an order was entered granting the motion for a new trial. Neither party appears to have been notified in anywise, in the meantime, that the statement had been, in fact, settled. No opportunity [333]for engrossment was afforded, nor was it even known, with certainty, what matters would be contained in the statement when it should be thereafter finally engrossed and certified, so as to be used on the hearing of the motion for a new trial. On August fifteenth following a motion was made by the defendant to set aside the order granting a new trial, on the ground that it was improvidently made, that the motion for a new trial had never been submitted, etc. This motion came on to be heard on August twenty:second, and was supported by affidavit of the counsel for defendant and the records of the Court, and was then heard and taken under advisemennt until September 5th, 1870, when an order was entered denying the motion. This last order is as follows:

“ This cause having been heretofore submitted on motion to vacate and set aside the order granting a new trial herein, the same having been well considered by the Court, it is ordered that the statement on motion for new trial, as submitted by the plaintiffs, together with such of defendant’s amendments as are marked ‘Allowed,’ and the testimony of O. W. Childs and Matthew Keller, be, and the same is, the statement as settled by the Court, and is allowed as the true statement in the case. It is further ordered that said statement, so settled, be considered now as having been engrossed at the time of its settlement. And whereas, the said statement was settled before the motion for new trial was passed upon by the Court, but was not certified or engrossed, by reason of an inadvertence growing out of the multiplicity of duties devolving upon the Court at that time, it is further ordered that said statement, so settled, be and the same is hereby settled and considered engrossed, now for then. It is further ordered that defendant’s motion to vacate and set aside the order granting a new trial herein is hereby denied, and that the said order, heretofore made, granting a new trial, be and is hereby affirmed.