#### Jones vs. Evans.

PRACTICE f (1) *Motion, to set aside judgment; when it must he on a case settled.*(2) *Sow objection waived.*(8) *When order as to new trial reversed.*

1. Except in certain cases specified in C. C. Rules of 1857, Rule 12, it is irregular to move at a subsequent term to set aside a judgment upon affidavits, without having had a case settled; and if the objection were taken and overruled at the circuit, this court might he compelled to reverse on that ground an order granting the motion.

2. But if the party resisting the order omits to take that objection at the circuit, and afterwards, on appealing from the order, procures a case to be settled, he cannot take the objection here. So *held*in a case where a new trial was granted on the ground of newly discovered evidence.

3. An order granting or refusing a new trial will not be reversed except for an abuse of discretion, or where the court below has clearly proceeded upon an erroneous view of the law.

APPEAL from the Circuit Court for *Dodge*County.

The defendant appealed from an order granting a new trial. The facts, so far as they are necessary to explain the points of . practice decided,, will appear from the opinion. It has not been thought worth while to give here the affidavits upon which the order appealed from was founded.

*169
      *E. P. Smith,*for appellant,

to tbe point tbat a motion for a new trial on tbe ground of newly discovered evidence, cannot be beard on affidavits alone, cited Eule 84, S. C. Eules, and 7 Wend., 331. He also argued tbat tbe affidavits, except tbat of tbe plaintiff bimself, should not bave been received in evidence, because not duly authenticated; tbat tbe plaintiff knew or might bave known of tbe existence of tbe new evidence at tbe time of tbe first trial, and was guilty of negligence in not procuring tbe same, etc.

id Hamilton, for respondent.

Lyon, J.

Tbe action is upon two promissory notes, and was tried at tbe June term, 1870, of tbe circuit court for Dodge county. Tbe defendant bad a verdict. At tbe ensuing September term of tbe court, tbe plaintiff moved on affidavits, and without procuring a case to be settled, tbat said verdict and tbe Judgment which bad been entered upon it, be set aside and vacated and a new trial granted. After argument by counsel, and after bearing counter-affidavits on tbe part of tbe defendant, tbe court granted tbe motion. Tbe defendant appeals to this court from tbe order granting tbe same.

We agree with counsel for tbe defendant, tbat a case should bave been settled before tbe motion for a new trial was entertained ; and bad tbat objection been taken to tbe proceedings on tbe motion in tbe circuit court, and overruled, it is quite probable tbat it would be our duty to reverse tbe order. But it does not appear tbat such objection was taken to tbe proceedings ; and since tbe motion was decided, a case has been regularly settled and is before us. Tbe practice is quite common, to move for a new trial for causes stated in affidavits accompanying tbe motion, and at a term subsequent to tbe one at which tbe verdict was rendered, without first settling a case. But tbat practice, except in certain cases specified in tbe rule (Circuit Court Eules of 1857, Eule 12), is irregular, and, if proper objection'be taken, must, I think, reverse tbe order *170granting tbe motion. But we see no reason wbj tbe requirements of tbe rule in tbis respect may not be waived, and tbe irregularity cured, by tbe failure of tbe opposite party to object tbe circuit court to tbe proceedings upon tbe motion, and by procuring a case to be afterwards settled.

If tbe plaintiff bas made a proper case for a new trial, by tbe case now settled and by tbe affidavits, it will be a useless process to reverse tbis order for sucb irregularity, and compel bim to renew bis motion in tbe circuit court, wbicb, in sucb case, would be again granted, as a matter of course. We think tbe better reasons, under tbe special circumstances of tbis case, are in favor of tbe views indicated; and we bold tbat tbe irregularity of moving on affidavits alone for a new trial for newly discovered evidence, bas been waived by tbe opposite party.

We bave but little to say on tbe merits of tbe motion for a new trial. Tbis court bas repeatedly beld tbat tbe granting or refusing to grant tbe motion is a matter addressed to tbe sound discretion of tbe circuit court. Tbe decisions of tbis court to that effect are quite numerous, and are cited in *Van Doran v.*Armstrong, decided at tbe present term. It is only in a case where there bas been an abuse of tbat discretion, or where it is clear tbat tbe court below bas proceeded upon a mistaken view of tbe law, tbat tbis court will interfere.

We bave read tbe evidence in tbis case and tbe affidavits in support of tbe motion, carefully, and we are unable to say therefrom tbat tbe new trial was improperly granted. Much less can we say tbat there was an abuse of discretion in granting tbe same.

And even were we to exclude all of tbe affidavits read by plaintiff in support of tbe motion except bis own, we could not then say tbat there was an abuse of discretion on tbe part of tbe circuit court.

Tbe order appealed from must be affirmed.

*By the Court.*— Order affirmed,