Lee v. Boddie

Trippe, Judge.

It was claimed by plaintiff in error that the motion was made for a new trial within the proper time, and that it was error in the court to dismiss it. Five years had elapsed since the trial; there had been several changes in the presiding officers of the court; there had been no verification of the grounds recited in the motion, neither at the term the motion is claimed to have been made, nor at auy subsequent term, down to the time of the motion to dismiss. There was no ruie nisi signed by the court or eutered on the minutes, nor was there any acknowledgment, signed by counsel, of notice of the motion, or of the rule nisi, which it is also claimed was granted by the court. Section 3723 of the Code provides that in all applications for a new trial, the opposite party shall be served with a copy of the rule nisi, unless such copy is waived.

The papers in this ease were in too imperfect a condition, and the rules regulating motions for new trials too much disregarded, to allow the motion and service to be perfected after such a length of time. It would beget a practice which would produce confusion, and burden the courts with having to decide matters five years after they transpired, and this, too, from the conflicting recollections of the parties; whereas, if the law bad been observed, all would have been in writing, and no dispute as to its correctness.

Ve cannot say that, under the circumstances, the court erred in dismissing the motion.

Judgment affirmed.