Dean v. Pritchard

By the Court, Whitman, C. J,: The order for a new trial, from which this appeal springs, is based upon certain affidavits which are not identified as having been used upon the motion, as by statute provided. “To identify the affidavits, it shall be sufficient for the judge or clerk to indorse them at the time as having been read or referred to on the hearing. ” 1 Comp. Laws, 347. Objection is made by appellant to the consideration of such affidavits. To meet this objection, respondent offers a memorandum of the district judge to the desired effect, but made after the filing of the transcript in this Court. The identifi [234] cation to follow the statute must be made ‘ ‘ at the time ” of use of affidavits ; one made after the case is in this Court cannot come within the meaning of that language by any construction, howeyer elastic. So there are no affidavits shown to have been used on the hearing of the motion in the transcript; consequently, no foundation for the order. White v. White, 6 Nev. 20. It is therefore reversed.