Brown v. Groover, Stubbs & Co.

Warner, Chief Justice. It appears from the record and bill of exceptions in This casé, that on the trial of an issue formed upon an .affidavit of illegality, the jury found a verdict in favor of the plaintiffs. The defendant during.the March term of .the court, 1879, at which the case was tried, filed a motion for a new Trial, which was served on plaintiff’s counsel, ,and also filed a brief of the evidence subject to the revision and approval of the court. JAfter said brief of evidence was filed, plaintiffs’- counsel .took it into' his possession for the purpose of examining the same, but was not asked to agree to it at that time, nor did he ever promise 'to do so at any time. Said court was adjourned to the second Monday in June, 1879, but owing to the sickness • of the judge, the said adjourned term of the court was ■not held,, and all the business in the court went over to the next regular term thereof, held on the first Monday in September, 1879. When the case was called in its regular •order upon the motion docket at the September term, 1879, The attention of the. court was called to the fact that 240 there had been no consent of counsel indorsed on the-brief of evidence, and the same was then submitted to-the court for its approval and revision. The presiding judge made the following indorsement upon the paper-purporting to be a brief of the evidence: “This brief of evidence is presented to me for approval on this day for the first time. Six months having elapsed since the trial,. I am not able to certify whether it is correct or not. My-memory of the evidence is not sufficiently distinct to enable me to speak with any certainty of its correctness or incorrectness. I recognize the correctness of portions of it. September, 18th, 1879.” ■ The plaintiffs’ counsel then-moved the court to dismiss the defendant’s motion for a new trial on the ground that no brief of the testimony-had been filed under the approval and revision of the-court as required by law, which motion the court sustained and the defendant excepted. The indorsement of the judge on the paper which purported to be a brief of the testimony, was no approval of it as contemplated by the forty-ninth rule of court, and the-reason why it was not approved, and could not be, was owing to the lachesoi the defendant in not presenting it to-the judge at an earlier period of time after the trial of the case. When parties lose their rights by th'eir own negligence, this court has no legal power or authority to relieve-them, even if it had the inclination to do so. Let the judgment of the court below be affirmed.