Majority
p. 449Muir vs. Demaree.
Headnote
On the granting or denial of a new trial by a circuit judge, a rule must be entered to give such effect to such decision at the next term after the decision.An appeal from such decision may be made at any time within eight days of. ter the entry of such rule.
The defendant applied to the circuit judge, before whom this cause was tried, for a new trial on a case made, which was argued in July, 1832. On the 22d August the judge filed his decision denying the new trial at the clerk’s office in Geneva. In September the defendant appealed to this court, by giving notice to the plaintiff, and entering into the bond prescribed by statute, Laws of 1832, page 188, § 4 and 1, and in October term the plaintiff entered judgment upon the verdict in his favor, which the defendant now moved to set aside as irregularly entered.
By the Court,
By the second rule established by this court at the last May term, regulating proceedings in cases of this kind, the decision of the circuit judge is required to be filed in one of the clerk’s offices of this court, and the party in whose favor the decision is made is authorized to en«
p. 450
ter such rule to give effect to the decision, as in like cases is entered upon a decision of this court: such rule, however, not to be entered in vacation. The rule to be entered, therefore, in such cases, is a rule granting or denying a new trial, and it must be entered in term time; and within eight days thereafter, that is, after the entry of such rule the party intending to appeal must execute the bond required by the statute, or obtain an order staying the proceedings. Such is the purport of the fourth rule of May term last. The plaintiff’s attorney understood the limitation of eight days to run from the filing of the decision, instead of the entry of the rule, and supposing the appeal out of season, entered judgment. In this he erred. The appeal was in season, and the judgment must be set aside.