Drucker v. Patterson — 2 Hilt. 135

Majority

p. 135

Abraham Drucker v. William Patterson.

Headnote

This court will not grant a rehearing of an appeal, upon an affidavit which merely shows that, on the first hearing, the counsel for the appellant was not duly pro pared to argue the cause, and therefore entertains the belief that the court did not fully understand the questions involved in the case.

Kor does such an affidavit show any ground for allowing an appeal to the Court of Appeals, in a cause commenced in a district court.

Motion for a rehearing of an appeal from a judgment of a district court, or for other and further relief, &c. The affidavit of

p. 136

George Carpenter, the appellant’s counsel on the former hearing of this case, showed that he had been led to believe the argument of the appeal would go off for the term, by consent; and, in consequence, did not make due prejDaration for the argument. That, on the day when the cause was first reached, he was engaged in another court, and respondent’s counsel applied to take his default, but the court reserved the cause until the next morning, upon condition that he should then come in and argue it. That he was thus compelled to argue the cause the next day, without points, and while unprepared. He further stated his belief that the court did not fully understand the cause upon the argument.

George Carpenter and Augustus F. Smith, for the motion.

Nicholson P. O'Brien, opposed.

The ground upon which we are asked to grant a rehearing in this case, or for an order allowing an appeal to the Court of Appeals, is that the defendant’s counsel was not duly prepared to argue it, and that he believes that this court did not fully understand the case upon the argument. As respects the ground that this court did not fully understand the case upon the argument, we have merely to say that our belief upon that subject is not the same as that of the defendant’s counsel ; and, as to the point that he was not as fully prepared, upon the argument, as he thinks he ought to have been, we have to say that, after reperusing the case upon this motion, with the benefit of all the light that he has been able to shed upon it, now that he has fully prepared himself, no new view of it has reached us; and we should not feel justified in sending a case to the Court of Appeals, in respect to which there is not, in our judgment, either question, doubt, or difficulty.

Motion for re-argument denied, with costs.