US SUPREME COURT DECISIONS

An affidavit made by one of plaintiff's attorneys, he having been represented in the progress of the case by two, for use on a motion for a new trial setting forth that an order of continuance had been vacated and the case set down for trial in his absence and without notice either to plaintiff or affiant, whereby plaintiff was prevented from presenting his evidence to the jury and deprived of a fair trial, cannot be considered in this Court on writ of error, because: (1) such affidavit is no portion of the record, it not having been incorporated in a bill of exceptions; (2) there is nothing to show that it was the only affidavit bearing upon the point in the files of the case; (3) even if it were shown to have been the only affidavit, it would not be sufficient to overthrow the recitals of the record that the parties appeared by their attorneys.

The facts in this case are these: on November 10, 1884, plaintiff, now plaintiff in error, filed in the Circuit Court of the United States for the District of Nebraska an "amended and reformed petition." Nothing seems to have been done thereafter until 1887, when, at the May term and on the second day of May, the case was "ordered continued." On August 18, 1887, the record recites:

"On motion of defendants, leave is granted by the court to answer herein in ten days. Plaintiff is ruled to reply in twenty days, and it is ordered by the court that the continuance heretofore entered herein be, and the same is hereby, set aside, and this cause stand for trial at the adjourned term of this Court."

An answer was filed on August 20, 1887, and a reply on the chanrobles.com-red

Page 149 U. S. 606

22d of September. On the 4th day of November appears an entry of a trial, with a verdict for the defendants, and judgment thereon. This entry opens with this recital: "Now come the parties herein, by their attorneys, and also come the following named persons as jurors, to-wit." On November 12, the plaintiff filed a motion to set aside the judgment and for a new trial on the ground that after the case had been continued, the order of continuance had been vacated in the absence of his counsel, and without notice, and because he had no notice or information that the cause stood for trial at that term, and had thus been prevented from presenting his evidence to the jury. In support of this motion, the affidavit of one of plaintiff's counsel was filed which, after stating the fact of the continuance and the order setting it aside, continued as follows:

"Said order was so obtained during the absence of plaintiff's counsel and without notice to plaintiff or to affiant that application would be made to the court for the vacation of said order of continuance, and no notice or information whatever was served upon or communicated to said plaintiff that said cause stood for trial at this term, until on the 11th day of November, 1887, and after judgment had been entered therein."

The motion having been overruled, plaintiff sued out a writ of error from this Court.