Gwinn v. Almand & George

Fish, J. Where more than a year after a motion for a new trial had been made it was dismissed in open court, upon the ground that no brief of evidence had been filed, there was no abuse of discretion in refusing to reinstate the same, though it appeared that prior to the order of dismissal a paper purporting to be a brief of the evidence had been “left in office,” and counsel for respondent had agreed that the motion should “be heard as though the brief of evidence had been filed during the term of court,” it further appearing that such brief had never been approved, and that, upon the hearing of the motion to reinstate, counsel for respondent declined to agree, to its correctness, and that the judge, on account of the lapse of time, was unable to remember anything about the evidence and could not have approved the brief had the motion for new trial been reinstated. Judgment affirmed. All the Justices concurring.