Opinion
Appeal from the Twelfth District.
The case being sent to a referee, he reported a judgment in favor of defendant. Plaintiff prepared and filed a statement on motion to set aside the report, and for new trial. When the motion came up, no one appearing for plaintiff, the motion was denied, and judgment subsequently entered up in accordance with the report. Plaintiff appeals from the judgment, and from the order denying new trial.
COUNSEL
Under the Practice Act, there is but one mode in which a motion for new trial shall be deemed waived, to wit: failing to file the affidavit or statement required by sec. 195, for five days after notice given. Here a statement was filed, containing the grounds of the motion, and the Court below should have acted on it.
Pixley & Smith, for Appellant.
D. Lake, for Respondent.
Plaintiff abandoned his motion by failing to appear, and the order denying it cannot be reviewed. The only remedy was an application to the Court below to open the motion.
JUDGES: Field, C. J., delivered the opinion of the Court. Baldwin, J., concurring.
OPINION
FIELD, Judge
The motion to set aside the report of the referee, and for a new trial, was denied, as no one appeared on behalf of the plaintiff in its support. This failure to prosecute was a virtual abandonment of the motion, and the order made thereon is not, in consequence, the subject of review on appeal. The precise point was decided in Mahoney v. Wilson, ante 42.
This disposition of the order leaves only the appeal from the final judgment, and upon this appeal there is no statement. The case, therefore, rests upon the judgment roll; and as this discloses no error, the judgment must be affirmed.
So ordered.