Deering v. Johnson

Vanderburgh, J.

The appeal in this case is from an order denying a new trial, made upon the settled case and upon affidavits, on the ground of newly-discovered evidence. It must be disposed of on the point made by the defendant, that the application for a new trial in the district court, made after the time to appeal from the judgment, and more than one year after the entry thereof, waB too late.

The judgment was entered on the 26th day of January, 1883, and the motion for a new trial was made on the 25th of February, 1884. The fact that the defendant accepted and agreed to the proposed case after the time to appeal from the judgment had expired, constituted no waiver of his right to object to the motion, particularly as no excuse whatever appears for the subsequent delay of six months. We think, therefore, the objection to the hearing of the motion in the court below might properly have been sustained under the rule in Conklin v. Hinds, 16 Minn. 411, (457,) and Kimball v. Palmerlee, 29 Minn. 302. The application was, however, denied on the merits, which we need not consider, as the order denying a new trial must in any event be affirmed on the ground above stated.

Ordered accordingly.