FRANK v. DOANE and GREEN v. DOANE

FRANK v. DOANE and GREEN v. DOANE. Failure to appear and prosecute a motion to set aside the report of a Eeferee, and for new trial, is an abandonment of the motion, and the order made, denying the motion for such failure to appear, is not the subject of review on appeal. Mahoney v. Wilson, (ante) approved. 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. Pixley & Smith, for Appellant. 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. 135, 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. 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. [MAJORITY — Field, C. J. delivered the opinion of the Court] Field, C. J. delivered the opinion of the Court Baldwin, J. concurring. 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 et al., (ante). 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. GREEN v. DOANE. The same point with reference to a motion for a new trial above is decided in this case. Field, C. J. delivered the opinion of the Court —Baldwin, Baldwin, J. and Cope, J. concurring. The appeal in this case is from the order refusing a new trial, and from the final judgment. The motion for the new trial was refused on the application of the plaintiff, no one appearing on behalf of the defendant in its support. The failure thus to prosecute was a virtual abandonment of the motion, and the order made thereon was not, upon the authority of Mahoney v. Wilson, decided at the January term, and of Frank v. Doane, decided at the present term, a subject of review in this Court. Upon the appeal from the final judgment there is no statement, and the case before us rests, therefore, upon the judgment roll, and as this discloses no error, an affirmance of the judgment must follow ; and such affirmance is ordered.