Lawton v. Reynolds

JOSLIN, J.

Heard on motion of the respondent “that •said cause be reopened for the hearing of further evidence.”

This matter first came before this Court upon exceptions filed by the plaintiff and the defendant to the report of the auditor. By rescript heretofore filed, (this Court overruled all (the exceptions of the defendant and all the exceptions of the plaintiff other than her exception No. 3, which relates to a certain $850 item. Decision was ordered entered in the sum of $2,869.76 plus interest.

,As was pointed out in the rescript, the hearings were held before an auditor. The testimony was transcribed and 'the Court had all of the transcript except a portion designated number 4, whose absence was then unexplained. As a result of statements made at the hearing on this motion, together with certain affidavits which have been filed, we are satisfied that on the date when transcript number 4 was supposed to have been made no testimony was taken.

The motion to re-open .assigns several .reasons but only one was pressed; the others being waived. No testimony was offered. The reason that is urged is that the Court, in its original consideration of the case, did nolt have before it certain portions of the transcript numbers 8 and 9, dated respectively March 26, 19S0, and April 16, 1930.

The rescript states that the “hearings before the auditor * * * were not concluded until September 5, 1928.” From this .the respondent naturally inferred that the Court did not have before it the two transcripts above referred (bo. However, the date “September 5, 1928” in .the rescript was an error. It should have read April 16, 1930. In the study which this Court gave to this case prior to the preparation of said rescript, the entire transcript of the testimony, including portions 8 and 9, was read and considered.

The motion is denied and the stay ordered June 6, 1934, is vacated.