The opinion
On motion to reject the statement, Cope, J. delivered the opinion of the Court
Field, C. J. and Baldwin, J. concurring.
A motion is made in this case to reject the statement on the motion for a new trial. The judgment was rendered on the eighteenth of October, 1858, and within two days thereafter plaintiffs served a notice of their intention to move for a new trial. On the fourth of December, a statement on the motion for a new trial was settled and signed by the Judge, and this statement being regular on its face, the signature of the Judge is presumptive evidence of the regularity of the previous proceedings. To rebut this presumption, and establish the invalidity of the statement, the defendants bring up a bill of exceptions subsequently signed by the Judge, showing that the original statement did not contain a specification of the grounds of the motion, and that such specification was inserted by way of amendment, after the time for filing a statement had elapsed. Passing by the question as to the admissibility of this mode of assailing the statement, we think the bill of exceptions fails to disclose any error or omission affecting its validity. The original statement was incomplete, but it was not a nullity." It was perfect except in the particular referred to, and contained, in fact, all the grounds of the motion. It omitted merely the formal requisite of a specification of those grounds. In that respect alone, it was amended; not a fact or exception was added. Nothing additional was interposed that could in any manner affect the merits of the motion. The amendment was clearly in furtherance of justice, and its allowance by the Judge was a matter of discretion, and not, as we think, a question of power. Johnson v. Whitlock (3 Kern. 344) is a strong case in support of this position. The Court say: “ If this statement has been imperfectly made, we have no doubt of the power of the Supreme Court to direct a resettlement, and reform the proceedings in any manner not inconsistent with the actual finding of the Judge or Referee upon the facts. The facts, as found, cannot be changed and found differently; nor can leave be had to insert exceptions never in fact taken; but within these limitations it will always be proper to move in the Supreme Court, not to turn the case into a bill of exceptions—a proceeding which has no existence under the code—nor into a *397 special verdict, but so to amend the case itself as to fitly present the questions which are to be examined in this Court.”
It follows that the statement was properly made and settled, and the motion to reject is denied.