Milltown Lumber Co. v. Lastinger

Xumpkin, J. At the September, 1910, term of the superior court a verdict was rendered. The losing party moved for a new trial, the rule nisi being made returnable in vacation on November 2. An order was also granted, reciting that it was impossible to make out a complete brief of evidence before the adjournment of court, repeating the setting of the hearing, and declaring that the movant might amend the motion at any time before the final hearing, and that he should have until the hearing, whenever it might be, to prepare and present for approval a brief of the evidence. On the date fixed for a hearing, counsel entered [105] into a written consent to continue it to November 4, and the judge passed an order setting the hearing for the agreed date, and allowing the movant until such date to make out and file a brief of the evidence. On the second day so fixed, the judge, by agreement, passed an order declaring that the “motion for a new trial stands continued until” another named date in vacation • (Nov. 22). On the last day so fixed counsel for respondent moved to dismiss the motion for a new trial, because no brief of the. evidence was presented for approval on or before November 4, and the order continuing the hearing from that date did not continue the time for presenting or filing a brief of the evidence. It was admitted that a brief of evidence had been agreed upon by counsel on Sunday, November 20, but the agreement was dated November 3, and an entry of filing thereon was dated November 4. It did not appear that the brief was at any time presented to the judge for approval; nor was there any assignment of error based on a refusal to approve it. Held, that, under such circumstances, the judgment of the presiding judge dismissing the motion will not be reversed. November 15, 1911. Motion for new trial. Before Judge Merrill. Berrien superior court. November 22, 1910. W. B. Smith and W. G. Harrison, for plaintiffs in error, Hendricks & Christian, contra. Judgment affirmed. All the Justices concur, except Beck, J,, absent, and Sill, J., not presiding.