Larson v. Ross

Collins, J. The defendant’s motion for a new trial of this action must be regarded as having been made upon the minutes of the court, as provided by 187S G-. S. ch. 66, § 254, for no other ground known to the statute was specified in the notice. The motion was not heard at the term at which the trial was had, but at the second term thereafter. Plaintiff’s attorney did not oppose a hearing at that time, nor did he object to a consideration of the motion until it had been argued by the attorney for the moving party. He then moved that the motion be denied, because, under the statute, it could only be heard at the trial term, and therefore the court was without jurisdiction to hear or determine it. There was no question of jurisdiction involved in the case, but simply one going to the regularity of the proceeding. The defendant’s counsel had proceeded irregularly, and, this being the sitúa [75] tion, it was incumbent upon the plaintiff’s attorney to point out the error to the court at the earliest opportunity. This he failed to do, but waited until his adversary had argued the motion upon the merits. He must be held to have thus waived the irregularity, as he had a right to do. Order affirmed. (Opinion published 57 N. W. Rep. 323.)