Marble v. Fay

By the Court, McKinstry, J.: 1. Appellant asserts that when the motion for a new trial was granted by the District Judge, no bill of exceptions was on file.

The endorsement on the bill of exceptions in the records is: “Bill of exceptions. Filed for presentation to the Judge of said Court, this 21st day of October, 1873.” (Signed by the Clerk.)

The Judge’s certificate to the bill: “I do hereby certify .that the foregoing statement and bill of exceptions is true and correct, and is allowed. October 27, 1873.” (Signed.)

[586]It is claimed that this Court cannot consider the bill, because it was not again endorsed “filed,” as of a date subsequent to that of the Judge’s certificate. The bill of exceptions was “signed by the Judge” and filed “with the Clerk,” and the signing and filing were within thirty days after the trial. This was a substantial compliance with the statute.

2. When a new trial is granted by the District Court, on the ground that the evidence does not justify the verdict, we do not reverse the order where, as in this case, there is a substantial conflict in the evidence.

Order affirmed.

Neither Mr. Chief Justice Wallace nor Mr. Justice Niles expressed an opinion.