O'Flynn v. Eagle

By the Court: We can not entertain this motion. The assignment of errors was filed in May, while this court was in session. A full term has elapsed since, and unless some very satisfactory reason is shown for the delay, we do not entertain motions, based upon irregularities, after the lapse of a term. But the affidavits themselves we think aré insufficient. There is no positive showing here that the attorneys are not properly employed on behalf of Finn, but, on the contrary, the affidavits disclose the fact that O’Flynn is the real party in interest, and bound to protect Finn from liability. He was bound, therefore, to take the necessary steps for that purpose, as he is doing. Finn does not positively object, and ought not to; and it may be doubtful if the court should permit him to release errors in such a case if he should come here for the purpose. The motion must be denied. Towle said the case was a hard one upon the defendants in error, their demand being indisputably just, and he thought they should not be charged with costs on the motion. The Court: We give costs in all such cases as a matter of course, unless some special reason is shown why they should not be imposed. On a subsequent day, on affidavit that, since the cause was removed to this court, the court below, on motion of defendants in error, had amended the record so as to show judgment against O’Flynn only; Towle moved to dismiss the writ of error, claiming that this amendment removed the only error complained of in the case. By the Court: We can not hear such a motion on affidavit. The record, [309] as we have it before us, shows a judgment against O’Flynn and Finn both. We can only be informed of amendments made since that was sent up, by a further return to the writ of error.