De Gaze v. Lynch

By the Court, Sprague, J.: This is an appeal by the plaintiff from an order granting defendants’ motion for a new trial, and also from an order denying plaintiff’s motion to vacate and set aside such order granting a new trial,

The record presented by the transcript discloses substantially the following state of facts:

The action was ejectment, and the verdict and judgment were in favor of the plaintiff, and against the defendants. In due time three of the defendants gave notice of their intention to move for a new trial, and subsequently prepared and filed their statement on such motion, which statement was certified by the Judge, as settled by him and correct, on the 12th day of May, 1870. This statement, as settled and [365]certified by the Judge, contains a very full specification of the grounds upon which the moving party will rely in support of the motion, among which is specified various errors of the Court in giving and refusing instructions to the jury, and in admitting certain oral evidence and various written documents against objections of defendants, as also, that the evidence was insufficient to support the verdict, with particular specification upon this ground. But the statement, as settled and certified by the Judge, does not contain the instructions given or refused by the Court, to which exceptions were taken by defendants, nor any of the documentary evidence given on the trial against objections of defendants, which were essential and necessary to illustrate and explain the particular points specified in the statement as the grounds relied upon in support of the motion. Only a reference to such documentary evidence and instructions is contained in that statement, thus: “ Deed from Foster, administrator of the estate of U. M. Pryor, to plaintiff". (Here insert Exhibit A.) (Here insert instructions of plaintiff),” etc.; and the Clerk of the Court, in his certificate to the transcript, certifies that the statement “is the only settled or authenticated statement on motion for a new trial ” in the case. This statement appears to have been settled, and certified by the Judge as correct, on the 12th day of May, 1870. On the following day, thirteenth of May, defendants duly notified the plaintiff that upon his statement on file, and upon the files, papers, and records in the action, they would move the Court, at the Court-room thereof, on the 16th day of May, 1870, at the opening of the Court on that day, or as soon thereafter as counsel could be heard, for a new trial in said cause, so far as the same relates to defendants Mott, King, and Burns. The record discloses no further action upon the motion until the 2d day of June, 1870, when, in open Court, a motion for a new trial in another case was overruled by the Court, whereupon the counsel for plaintiff" in this case called up