Levy v. Getleson

By the Court, Shaftek, J. One of the questions presented is whether it is error for a District Court to refuse to settle a “ statement ” made in support of a motion to set aside a nonsuit—or to refuse to entertain a motion to amend such statement after it has been filed and served on the opposite party—or error to grant an order striking such statement from the files of the Court. The District Courts cannot be called upon to review a case upon the testimony, nor upon an allegation of errors of law occurring at the trial, except in the way pointed out in the Practice Act. That method is simple and straightforward, and, in our judgment, was intended to exclude all others. If the plaintiff desired to have the nonsuit entered against him investigated upon its merits in the District Court, he should have moved for a new tidal upon a statement; or if he preferred to bring the case to this Court directly, he could have done so by an appeal from the judgment aided by a statement annexed to the roll. There is a statement in the transcript but it does not purport to be a statement on appeal from the judgment. The result is that the Court did not err in refusing its- sanction to a method of reviewing decisions made in the course of a trial, altogether unknown to our system. The jdaintiff has not only appealed from the judgment in favor of Pestner, but also from an order overruling a motion to retax the costs. The memorandum of costs was duly filed October 17, 1863 ; the notice of motion to retax was served June 20, 1864, and the order denying the motion was made on the twenty-seventh of that month. The judgment was entered July 18, 1864. The order appealed from is not in itself appealable, inasmuch as it was not made after final judgment. The proper course would have been to appeal from the judgment—raising the question of the correctness of the taxation by a statement annexed to the judgment roll. (Practice Act, Sec. 344.) We cannot approach the alleged error through an appeal from a non-appealable order. Judgment affirmed.