Opinion
Submitted September 29, 1876
Decided October 6, 1876
George W. Sandford for the appellant.
W.I. Butler for the respondent.
ALLEN, J., reads for affirmance of order granting a new trial, and for judgment absolute; CHURCH, Ch. J., MILLER and EARL, JJ., concur; FOLGER, RAPALLO and ANDREWS, JJ., not voting.
Order affirmed and judgment accordingly.
On motion for reargument in above cause, it was claimed that judgment should have been modified and defendant allowed to retain the mortgage for a portion of the debt secured, which it was alleged was not affected by the usury. Held, that if defendant was right in this claim, he should have gone back for a new trial, instead of appealing from the order granting it, as this court could only affirm or reverse the order granting a new trial; and, a new trial having been been properly granted, the order was necessarily affirmed, and judgment absolute given.
All concur.
Motion denied.