Preston v. Eureka Art. Stone Co.

Department No. 2, Sharpstein, J.: This is an appeal from an order denying the defendant’s motion for a new trial. The motion was based upon a bill of exceptions and affidavits ; from which it appears, that in July, 1876, the case was transferred from its proper place on the calendar to the foot of it, on account of the absence of the plaintiffs’ attorney, who was in the Atlantic States during part of that and the preceding month. On his return in the latter part of July, by an ex parte motion he had the case advanced on the calendar, so that it was reached for trial on the 31st of July. Prior to the last mentioned date, Mr. Splivalo, who had been the attorney of the defendant, substituted E. J. and J. H. Moore as attorneys in his place, and they served notice of their substitution upon the plaintiffs’ attorney on the 17th of July, 1876. The substitution, however, has never been filed with the Cleric., There is an entry in the minutes of the Court of July 31st, 1876, which reads as follows:

“This cause came on regularly for trial. Mr. Van Dyke appeared for plaintiffs, and Mr. Splivalo for defendant. Whereupon, by consent of respective counsel in open Court, it is pr[200]dered that judgment be entered in favor of plaintiffs and against defendant for the sum of $1,187.35 in gold coin of the United States of America, with costs. By consent of respective counsel, it is ordered that proceedings be stayed for sixty days.”

Mr. Splivalo states in his affidavit that he was not in Court on the day when the case is stated in said minutes to have come bn for trial, and gave no consent to, and knew nothing of, the proceedings therein mentioned.

Joseph IT. Moore states in his affidavit that he met the plaintiffs’ counsel in the court-room on the day upon which the case was called and judgment rendered, and when said plaintiffs’ counsel told him, Moore, that the cause would soon be called for trial, he says: “ I told him he must proceed as he thought fit; that I should not give consent to any proceedings in the matter, and I then withdrew from the court-room. I did not consent to the order for judgment entered herein, or to any other order, and was not present in Court when it was made and entered.”

Mr. Van Dyke, counsel for plaintiffs, in his affidavit states distinctly that it was agreed between him and said Moore that judgment should be entered as the minutes state. He says that he does not recollect whether Mr. Splivalo was present or not; and after the notice of substitution was served, it was immaterial whether he was or not.