Appeals seeking to review the action of the trial judge in settling a case are not regarded with favor, and the decision of the trial judge is conclusive upon the appellate tribunal, except in cases where it is apparent that there has been upon the resettlement a denial of a substantial right. This view disposes of all the questions raised on this appeal, excepting two, relating to the 1st and 151st amendments, which were allowed, and which, on motion, the trial judge refused to strike out.
The first amendment refers to the preliminary statement which, by the rules, is required to be inserted in the case,—as to when the action was begun. The rule1 would be satisfied by the insertion of the words “on or about ” February 11th, instead of fixing the date as positively of the 11th of February; and in view of the stress placed upon the position of the appellant that, if the date were stated positively, it might be construed into a waiver of the point, raised upon the trial, we think it should be allowed. The reasons for this conclusion are more apparent when we come to consider the 151st amendment, by which it was sought to have inserted “after the word ‘summons’ the words ‘in equity suit,”’ which words sought to be inserted were not used upon the trial. It is not disputed but that the defendant then made the point that the equity suit was first commenced, and that thereby the plaintiff was precluded from afterwards bringing an action at law for fraud, and that the plaintiff’s evidence was directed to showing that this contention was unfounded, and that the summons marked “L4” was the summons in the equitj'- suit. This, however, was the point at issue between the parties; and we think that the trial judge should not have determined this in plaintiff’s favor, upon the settlement of the case, which is the result of now characterizing the summons offered in evidence by the words “in the equity suit.” The summons with the proof of service, or the exhibit just as it was presented, and with the offer made at the time it was presented, are entirely proper, and will appear in the case as settled. This, supplemented with the testimony on the part of the plaintiff, places the plaintiff’s rights with respect to this question in the same position as they were upon the trial. We think, therefore, that the order denying the motion for the resettlement in respect to these two amendments should be reversed, and in all other respects affirmed, without costs to either party. All concur.
Gen. Rule Pr. 41 requires that, “when an appeal is noticed íor a general term, * * * the appellant shall furnish * * * a statement showing the time of the commencement of the suit. ”