Preston

This is an appeal from an order denying the defendant’s motion for a new trial. The motion was based upon a bill of exceptions and affidavits ; from which it appears, that in July, 1876, the case was transferred from its proper place on the calendar to the foot of it, on account of the absence of the plaintiffs’ attorney, who was in the Atlantic States during part of that and the preceding month. On his return in the latter part of July, by an ex parte motion he had the case advanced on the calendar, so that it was reached for trial on the 31st of July. Prior to the last mentioned date, Mr. Splivalo, who had been the attorney of the defendant, substituted E. J. and J. H. Moore as attorneys in his place, and they served notice of their substitution upon the plaintiffs’ attorney on the 17th of July, 1876. The substitution, however, has never been filed with the Cleric., There is an entry in the minutes of the Court of July 31st, 1876, which reads as follows:

Mr. Splivalo states in his affidavit that he was not in Court on the day when the case is stated in said minutes to have come bn for trial, and gave no consent to, and knew nothing of, the proceedings therein mentioned.

Joseph…