Greehn v. Marker

Searls, C.

— This is an action by plaintiffs as copartners to recover for goods, wares, and merchandise, sold and delivered to defendants.

Plaintiffs had judgment.

Defendant Marker moved for a new trial, and on the 26th day of May, 1884, filed with the clerk a statement on such motion.

The statement thus filed was not settled, allowed, or certified, and on the 4th day of October, 1884, the court, on motion of plaintiffs, dismissed the proceedings on motion for new trial, on the ground that said proceedings had not been prosecuted with duo diligence as required by law. Defendant Marker, on the 3d day of December, 1884, moved the court to set aside the order of October 4, 1884, dismissing his proceedings for new trial, which motion was denied. Two appeals are prosecuted in the case, one from the final judgment, based on the judgment roll alone, and the other from the order of December 3d, denying the motion of defendants to vacate and set aside the order of the court of October 4, 1884, dismissing the proceedings for new trial. This last appeal was taken January 22, 1885, and by stipulation of counsel the two appeals are consolidated and submitted as one case. lío notice was given to counsel for plaintiffs of the motion to set aside the order of October 4, 1884, and one of the grounds specified in the order of refusal appealed from is the want of such notice.

Under such circumstances the action of the court below was eminently proper, and any other course would have been erroneous.

Upon the question, whether or not the order was an appeal-able one, we express no opinion.

There is no error apparent in the judgment roll.

We are therefore of opinion that the judgment and order appealed from should be affirmed.

Foote, C., and Belcher, C. C., concurred.

The Court. For the reasons given in the foregoing opinion the judgment and order are affirmed.