John P. Kirk, one of the attorueys iu ;he Jerome Schermerhoru appeal in thp tfaryette Bennett estáte, has filed a motion asking the circuit court to recall aud revoke the jtiagment enteied jy the juiy iu said matter for the reason that during the absence of the ndge and stenographer, Michael J. liehiijan, one of the attorneys was nakiug his argument to whioh exceptions were takeu by Jndge Babbitt aud uo court was present to determine :he materiality of the exceptious aud no record of the exceptions was made 3y the steuographer. Affldavits of the tnstb of this statement are made ly Judge Babbitt and Hou. E. P. Allen. Judge Babbitt in his affidavit says that Mr. Lehman in his closing argumeut made "the statement that the proponent was poor and had nothing at all with which to pay for preparing for trial, that the expenses for such preparation were heavy and that proponents lawyers had beeu to all the expense in such preparation, besides taking up a great deal of their time; that at the time of taking such exceptions the Honorable Edward D. Kinne, the circuit judge, who sat in the trial of said matter, was not present iu court ; that deponent's exceptions so made went unheeded by said JJehmau ; that much more was said by said Lehman iu the course of his said argnmenl whioh couveyed to the jury the fact that unless their verJict should sustaiu the will, counsel would be heavy losers, that said Lehman is a Germán and that several of the jury meu were Germans and acqnaintances of sak Lehman. Hon. E. P. Alleus' affidavit is along the same lines and to the same effect.