McGowan v. Johnson ( 1871 )

Day, Ch. J.

On the 28th day of September, 1867, the cause was tried by a jury, and a verdict returned for the defendant. On the 30th day of September, 1867, the plaintiff filed a motion to set aside the verdict. This motion was submitted to the court to be decided in vacation. On the 28th day of March, 1868, the motion was taken under advisement by the court. On the 18th day of December, 1868, it was ordered that the motion be decided in vacation. In vacation, on the 5th day of April, 1869, the judge overruled the motion. On the 24th day of May, 1869, being at the first regular term of court after said vacation order, the plaintiff filed his petition, and motion for a rehearing of his former motion, to set aside the verdict and grant a new trial. On the 29th of May, 1869, this motion was sustained and a new trial ordered.

On the 18th day of December, 1869, the defendant filed a motion to rehear the motion for new trial, which was sustained so far as to allow re-argument of the motion for new trial; and the cause was continued. On the 25th day of May, 1870, the cause was continued by agreement, with leave to argue the motion for new trial at the next term of Van Burén district court. On the 16th day of December, 18^0, the motion was submitted to be argued and decided in vacation. On the 29th day of December, 1870, the following vacation entry was made: “ This cause came on for hearing on plaintiff’s motion for new trial. Said motion was submitted to the court, with an agreement that it should be decided in vacation, and record made as of the last day of the November term, 1870, and now, on the 29th day of December, 1870, the court being fully advised in the premises, sustains said motion, and orders that the verdict of the jury heretofore impaneled be set aside and that a new trial of said cause be awarded.”

Appellant claims that it was not competent for the court, after having overruled the motion for a new trial, to further entertain its consideration. We are of opinion, however, that the defendant, having allowed, the petition and motion for rehearing to be submitted to the court without objection, and having moved a reconsideration of the order of 29th May, 1869, granting a new trial, and having consented to its continuance, and determination by the judge in vacation, has waived any objection which might otherwise have existed to the action of the court. Under the facts of the present case, the only question which appellant could submit for our review is the ruling of the court upon the merits of the motion for new trial. This question, however, the defendant has not submitted for our consideration, and, in the state of the record, it cannot be determined.

Affirmed.