Main v. Kinzer

An attachment was sued out on October 10th, 1898, and judgment of condemnation (as per schedule) was entered. November 15th following. In the short-note case, there was an appearance for the defendant. Pleas were filed February 22nd, 1899, and by leave of Court, additional pleas on the 23rd of February.

On November 15th, 1899, a suggestion by the defendant for removal was overruled ; on the same day the case was “ submitted for trial” and verdict and judgment were rendered for the plaintiff, $500 interest and costs. On December 1st, 1899, a motion was made to strike out the judgment, and from the overruling of this motion the defendant has appealed. The motion sets up as ground for striking out the judgment an alleged agreement between counsel to the effect that there should be a continuance of the case from the February to the November term, and that a day should then be fixed for trial and that the att°rney for the plaintiff at the November term failed to comply with the agreement and insisted upon the trial of the case, whereby the defendant and his attorneys were surprised, misled and deceived and forced to trial, at a time when his witnesses were absent. It was also alleged that the defendant has a just and meritorious defense as appeared by certain affidavits annexed and that but for the surprise and deception as stated, the defendant would have been ready for trial when the case was called.

The alleged agreement was not reduced to ⁷⁶¹ writing and the oral testimony taken to support the motion has not been presented to this Court in such a form as enables it to take it into consideration. At the end of the record has been inserted what is alleged was the testimony of Mr. Poffenberger and Mr. Ernest Hoffman. The Clerk of the Circuit Court states in a note inserted after the record of proceedings that it was filed with him “ by the counsel for the defendant and at their request, added to the record in the case.” It does not purport to be a part of a bill of exceptions, it is not certified to by the Judge, and is not in the form of affidavits filed at the hearing below. There was handed to us at the argument, a paper purporting to bear the signature of Judge Stake; but conceding that to be correct, it does not appear that there has been any agreement that such paper should be taken as an authentication of the alleged testimouy.

The paper itself is vague and inconclusive; it is therein stated by the Judge that the “ testimony of Messrs.