
    Peter Larson vs. James A. Ross.
    Argued by appellant, submitted on brief by respondent, Dec. 7, 1893.
    Affirmed Jan. 3, 1894.
    No. 8565.
    Waiver of irregularity in practice by failing to object promptly.
    A motion for a new trial, made upon the minutes of the court, under the provisions of 1878 G. S. ch. 66, § 254, at a term subsequent to that at which the trial was had, is merely irregular, and it is incumbent upon one who wishes to take advantage of the irregularity to point it out to the court at the earliest opportunity.
    Appeal by plaintiff, Peter Larson, from an order of the Municipal Court of the City of Duluth, Eric Winje, J., made May 25, 1893, granting the defendant’s motion for a new trial.
    The Municipal Court of the City of Duluth is a court of record and the time within which motions for new trials and appeals may be made or taken is governed by the statute relating to the practice in the District Courts of this State. Sp. Laws 1891, ch. 53, §§ 19, 46.
    
      John H. Boyle, for appellant.
    
      N. A. é H. G. Gearhart, for respondent.
   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 sitúation, 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.)  