Eno v. Hunt

Wright, C. J. It is very clear that the judgment was not authorized from the verdict. There was no finding in favor of either party. As far as the record discloses, the verdict practically amounted to nothing. Can the subsequent proceedings aid the plaintiff? We think not, for two reasons. At the time the motion was made, the cause was pending in this court. It was at least irregular and improper to make any move in it, in the court below, withont notice to the adverse party. After appeal, defendant was not bound to take notice of what might be done in the district court. In the next place, the amendment made, was not “the correction of an evident mistake,” within the meaning of section 1580 of the Code. The evidence of the agreement referred to in the motion and affidavit, existed only in parol, and it would be a very loose and dangerous practice to admit ex parte affidavits, in the absence of the opposite party, a year after final judgment, and after appeal, to establish an agreement of this nature. Such agreements should always be evidenced by the record, unless admitted. Judgment reversed.