Ocean Steamship Co. v. Krauss

1. Oral evidence not incorporated into the brief of evidence as agreed upon by counsel and approved by the court, cannot be considered on a motion for a new trial. If some of the evidence was omitted from the brief, it could have been supplied by amending the brief, but not otherwise, not even by reverting to the judge’s personal memory.

2. According to the evidence as set out in the brief contained in the record, there was no testimony submitted to the jury of any relation whatever, between the parties to the case; and that being so, the court appears to have erred in overruling the motion for a non-suit, and in refusing a new trial on that ground. As a prima fade case was not made out, questions raised on the charge of the court are only speculative, having now no practical importance. The court should not have charged anything, but should have ordered a non-suit. Let a new trial he granted.