
    George W. Bugbee vs. F. E. Johnson et al.
    No. 58643.
    July 16, 1931.
   CAPOTOSTO, J.

Resuscitation, which is frequently attempted in medical cases, has been resorted to in this instance. A motion for a new trial filed on November 10, 1926, is revived to torment the Court after nearly five years of absolute inaction. Yet it is not without some result independent of the merits of the controversy itself. It furnishes a specific case in support of the necessity for some rule requiring the prosecution of such a motion within a set time, if the motion is to be entertained at all. It is not fair to the Court to allow such a considerable length of time to elapse before seeking a judgment of review upon matters which have long since been dismissed from one’s mind. In this instance the Court has been fortunate in being able to revive its own recollection by a transcript in the possession of one of the parties.

The defendants, as partners, conducted a business of manufacturing electrical goods. When disagreements arose, a bill for an accounting was filed by the defendant Bosworth against his partner Johnson and the matter was referred to George Farnell, Esq., as master. The report of an accountant, a Mr. Browning, who had been employed and paid by Bosworth, was used before the master. Dissatisfaction on this report brought about the suggestion of some one that another accounting be had. Who engaged the plaintiff rests, upon a series of affirmations and denials which are far from definite. The plaintiff maintains that it was the joint act of both partners in their individual capacity. The defendant Bosworth says that while he did not object to another accounting, he did not agree to engage any particular accountant, much less to pay his bill after he had already paid Mr. Browning for such services. His claim is that the plaintiff was hired at the request and for the sole assistance of his partner Johnson.

For plaintiff: John A. Bennett.

For defendant: W. A. Heathman, Lester & Walling.

The evidence against Bosworth was very slight, so much so that the Court almost directed a verdict in his favor. Upon a review of the testimony we are of the opinion that the plaintiff has not established his case by sufficient credible evidence against the defendant Bosworth.

Motion of the defendant, Leonard P. Bosworth, for a new trial is granted.  