Hasard v. Conklin

McAdam, J. The appellant presents for settlement the proposed case and amendments, upon an appeal from a judgment recovered after a trial before the late Justice Spaulding. The respondent denies the power of any other justice of the court, either to make the' settlement, or to order the case on file, as required by supreme court rule. 44. If Justice Spaulding were living, the settlement would have to be made by him, as of course. But, he is dead, and ex necessitate rel, the required settlement devolves upon the other judges of the same court, and the duty appropriately falls upon me as the justice assigned to chambers duty. To aid in the settlement, the stenographer’s minutes, with affidavits in regard to disputed amendments, must be furnished ; and if a satisfactory conclusion cannot be otherwise reached, an oral examination will be ordered, with a view to an accurate representation of what actually occurred upon the trial. These conclusions are in accordance with what is supposed to be the settled practice upon the subject (Morse v. Evans, 6 How. Pr. 445; Juliand v. Grant, 34 Id. 132). Ordered accordingly. Note.—In Juliand v. Grant, supra, it appeared that the referee died before settling the case upon appeal, and the court said : “ The defendant is entitled to go on with his appeal from the judgment, and [221] he should have time to make a case and exceptions, which may be settled by one of the justices of this court, on hearing the attorneys or counsel who tried the cause.