Lucas v. Mayor & Common Council of Marysville

By the Court, Wallace, C. J.: Upon the trial of the action the plaintiff' had judgment. The defendants gave notice of their intention to move for a new trial, and had until March twenty-eighth to file a statement in support of the motion. Intermediate the notice of intention and the twenty-eighth of March a statement was prepared, which set forth the proceedings had at the trial, the admissions made by the parties, the exceptions reserved, etc., but wholly omitted to specify the errors or particular [211]insufficiencies upon which the motion would be rested. To this incomplete statement the respective counsel, on the twenty-first of March, appended a stipulation in the following words: “It is hereby agreed between the parties hereto that the foregoing statement on motion for a new trial is a true and correct statement.” On March twenty-seventh the defendants placed a statement on file, which statement was made up of the stipulation and the matter to which it had been appended in the first instance, and also of a specification of errors and insufficiencies, post-fixed and attached by the attorney for the defendant. The plaintiff not agreeing to the statement as thus filed, an application to the Court was made by the defendant to settle and certify it under the provisions of section one hundred and ninety-five. This application was denied, on the ground that the only statement which could be regarded on the hearing of the motion for a new trial to be subsequently had was the statement to which the stipulation had been appended, and which, being thereby agreed to, did not require any settlement, and that the specification post-fixed thereto by the defendant could not, in view of the stipulation, be considered or regarded by the Court. In other words, that the defendant, in filing the stipulated statement, was not to be permitted to annex to it the requisite specification of the grounds of the motion. The defendant excepted to the ruling upon this point, and the motion for a new trial was afterwards denied, “ for the reason that there are no specifications of the grounds upon which the defendant will rely set forth in the statement on motion for new trial agreed upon by the parties.”

1. The Court should have settled the defendant’s statement. It was upon file, and as filed it was not agreed to by the adverse party. “ Such statement, when not agreed to by the adverse party, shall be settled by the Judge, upon notice.” (See. 195.) The duty to settle it results from the fact of disagreement of the parties from whatever cause that [212]