210 F. 18 | 3rd Cir. | 1913
This purports, by the statement in plaintiff in error’s brief; to be a writ of error by Hilma Nelson, plaintiff in
On September 22, 1910, plaintiff brought her action in the court below to recover damages for injuries which she claims to have suffered by the negligence of the .defendant. The case was called for trial, April 26, 1911, and on April 27th, the jury found a verdict for the defendant. The court below having granted an order extending the time for filing a motion for a new trial, such motion, with the reasons therefor, was filed on the 5th of May, 1911, and was duly argued on the 7th of June. At the next term, to wit, on the 8th day of November, 1911, the court refused the motion for a new trial.
The plaintiff filed her petition on March 30; 1912, to set aside the verdict, and for amendment of the record, on the ground that the verdict was rendered during an adjournment of court, and the court granted a rule on defendant
“to show cause why said verdict should not be set aside, the record or minutes amended, and for leave to move for a new trial, nunc pro tunc, etc., and that the minute book of the United States court, of 191lj be amended so as to show more specifically the facts, to wit, by supplementing said minutes with the following entry: ‘The clerk of said court announced 'the recess adjournment from 1 to 2 o’clock p. m., on the 27th day of April, 1911, during which interval the verdict, in the absence of the plaintiff and her counsel, was received and entered without plaintiff’s assent.’ ”
On April 22, 1912, plaintiff moved to amend petition to set aside verdict, on the ground that she had, since filing the original petition, then ascertained lately and for the first time that when the verdict had been rendered during an adjournment of court from 1 to 2 o’clock, the clerk alone received the verdict, in the absence of. the judge; also, to amend the first prayer of the original petition, by adding to the words, “that the verdict in this case be annulled, quashed, and set aside,” the words, “all proceedings to stay meanwhile.”
On May 7, 1912, the court below made the following order:
“Judge Holland, before whom this case was tried, authorizes me to say that he specially directed the clerk to receive the verdict that is now complained of as having been irregularly taken. The pending petition is therefore refused.”
On the 6th of November, 1912, it appears that a writ of error allowed by the court was duly issued, at the suit of the plaintiff, in thé
“Because in the record and proceedings, as also in the rendition of the judgment of a plea which is in the said District Court, Jbefore you, or some of you, between Iiilma Nelson, plaintiff, and Bichard G. Wood, defendant, a manifest error hath happened, etc.. * * * We, being willing that error, if any hath been, should be duly corrected and full and speedy, justice done to the parties aforesaid in this behalf, do command you, if judgment be therein given, that then under your seal, distinctly and openly, you send the record and proceedings aforesaid, with all things concerning the same, to the ■United States Circuit Court of Appeals for the Third Circuit,” etc.
Notwithstanding this anomalous condition of the record, we feel it our duty to express an opinion on the facts disclosed by the affidavits in support of the petition of the plaintiff in the court below.
The case had been tried upon its merits, ánd submitted to the jury in a charge by the learned judge of the court below, to which no exception was taken. A motion for a new trial was made and argued a few days after the verdict, and after consideration by the court, was refused. After this trial upon the merits, and the proceedings in relation thereto, we do not feel that the'plaintiffs, after this long delay, could with propriety invoke the judicial discretion of this court to review the order of the court below complained of, even if it were properly before us.
The writ of error is therefore dismissed..