
    Charles Banks, appellant, v. G. M. Hitchcock, appellee.
    The. taking of a stay of execution by defendant in an action in which a judgment has been rendered, is a waiver of the right to apply for a new trial, and by so doing such defendant would be estopped to attack the judgment in any manner. Following Miller v. Sy&rs, 11 Neb., 474.
    Appeal from Douglas county district court. Heard belo w before Wake ley, J.
    
      George W. Docme, for appellant.
    
      George B. Lake, for appellee.
   Reese, J.

This is an appeal from an order of the district court denying a new trial. The proceeding was instituted by petition and summons under the provisions of section 318 of the civil code. Appellant has filed no brief and the cause is submitted upon the brief of appellee.

A number of questions are discussed, but we think it necessary to notice but one, as it is decisive of the case.

It appears from the record that after the original judgment was rendered the appellant filed with the clerk of the district court a request for a stay of execution, and execution was thereupon stayed. The stay was taken by appellant's attorney, with full power to act, as shown by the proof.

This, by the holding of this court in Miller v. Myers, 11 Neb., 474, is a waiver of the right of a defendant to attack the stayed judgment in any manner.

The judgment of the district court in refusing the new trial is therefore affirmed.

Judgment affirmed.

The other judges concur.  