Sais v. Sais

By the Court, McKinstry, J.: At the April Term, 1871, an order was made by this Court directing the Judge of the Seventh District Court properly to settle the statement, and then to dispose of the motion for a new trial.

On the return of the cause, the District Judge ordered the plaintiff to file a proposed statement, which was done. The defendant filed amendments, some of which were allowed and some disallowed, and the statement ordered to be engrossed. The engrossment not being correct, the defendant submitted further amendments, which the Judge allowed, and the statement having been corrected, was signed by the Judge. Upon this statement the District Court granted a new trial. The defendant appealed from the order granting a new trial, and from the “proceedings” upon the settlement of the statement.

It is insisted by counsel for appellant that the District Judge should have ordered the short-hand reporter to file his short-hand notes. But inasmuch as it appears from the appellant’s petition that the short-hand reporter was utterly incompetent; that he could not take down the testimony as it was given at the trial, nor read such notes as he did take, the failure of the Judge to require that the notes should be filed could not have injured the appellant.

The defendant presented to the District Judge certain affidavits prior to the settlement of the statement. The defendant has not petitioned this Court for leave to prove that [266]the District Judge refused to allow an exception in accordance with the facts. (Practice Act, Sec. 189.)

The contents of the alleged deed under which the defendant claimed were not proved.

Order granting new trial affirmed.

Neither Mr. Justice Crockett nor Mr. Justice Rhodes expressed an opinion.