Central Railroad & Banking Co. v. Keller & Brother

After verdict for plaintiffs on May 9, defendant during the same term filed a motion for new trial. The grounds of the motion were approved, and an order passed allowing the motion to be heard and determined in vacation. On June 6, defendant presented a brief of the testimony to the judge for his revision and approval. Entered upon said brief was an agreement of counsel; counsel for plaintiff agreeing, “subject to make such corrections as are just and correct, in the hearing of the motion for new trial.” The judge approved the brief “ subject to correction at hearing,” and ordered it filed. It was filed on June 7. Thereafter the motion coming on for hearing, plaintiff moved to dismiss it on the ground that no order was taken at the May term, .authorizing the filing of a brief of the testimony during vacation^ and because the brief was not filed at the term. Previous to the filing of the motion to dismiss, plaintiff’s counsel suggested certain changes in the brief of evidence, which were accepted and agreed to by defendant’s counsel. The motion to dismiss was sustained.