Canzi v. Conner

1. Case on appeal, settlement of by the judge. Allowing a

PROPOSED AMENDMENT IN ACCORDANCE WITH THE STENOGRAPHIC

NOTES.

(a) Effect of. Assumed to have been settled in accordance with the judge’s minutes.

(5) Weight of. The evidence furnished by such settlement as to the real fact preponderates over that of the affidavit of the counsel who tried the cause for the party making the case, to the effect that the proposed case embodied the fact as it occurred, and suggesting a cause which might have led to its having escaped the attention and notice both of the judge and stenographer.

Appeal from an order entered at the request of appellant, allowing an amendment to her proposed case, by which certain exceptions therein stated to have have been taken by her were stricken thereout.

The affidavit mentioned in the head-note was as follows:

“ W. S. Wolf, plaintiff’s attorney, being duly sworn, says: that I tried the above-entitled action as counsel for the plaintiff, commencing October 3, 1876, and that I sat near the railing in front of the stenographer, and that when Justice Sanford read the defendant’s request to charge at the close of each request, after' he announced his decision to charge accordingly, I stated in a low voice, ‘ Plaintiff excepts.’ I supposed that the stenographer heard me ; at least Louis Canzi, who sat at my side, asked me what I made that speech for. That at'the close of the charge I excepted generally and specially to the charge. I was suffering from a cold in my head during said trial, and was partially deaf and could not tell how loud I spoke, but I thought I spoke loud enough for the stenographer to hear me. That the attorneys for Boethlisberger and Gerber have not objected to the ease as served, and have served notice of argument for next general term. That the sheriff’s attorneys alone object.”