
    STOYELL v. COLE et al.
    
    Plaintiff recovered judgment, and defendants gave notice of their intention to move for a new trial, and filed a statement of the grounds. Plaintiff filed a counter statement, but afterwards, at a meeting of the parties before the Judge at chambers to settle the statement, informed the Judge and defendants that the statement need not he settled, as he would consent to a new trial; whereupon, defendants gave notice of a motion to withdraw their motion or proceedings for new trial. Kefused, and a new trial granted: Held, that the Court erred; that defendants had a right to move or not to move for a new trial upon the notice given, and if they chose to abandon their proceedings, whether before or after the motion for new trial was made, they had the right so to do.
    Appeal from the Fifteenth District.
    Suit to recover damages for diverting water and for filling up plaintiff’s mill pond with saw dust, and for an injunction against future acts, etc.
    The facts as to the proceedings on the motion for new trial are : that plaintiff having recovered judgment April 22d, 1861, defendants on the next day served on plaintiff a notice that defendants would “ move for a new trial on statement to be filed according to law.” April 29th, 1861, a statement was filed, and on the thirtieth of the same month plaintiff filed a counter statement. May 20th, 1861, in vacation and before the Judge at chambers, the parties met to have the statement settled, when plaintiff informed defendants’ attorney and the Judge that “ no statement need be settled, for the reason that he would consent to the order granting a new trial. Whereupon, the defendants gave notice and filed a motion withdrawing their motion for new trial. The proceedings were then adjourned till Saturday, May 25th, 1861; ” at which time the Judge refused to permit defendants to withdraw “ the motion for new trial,” set aside the judgment and granted a new trial. From this order defendants appeal.
    
      W. W. Upton, for Appellants.
    
      Jos. E. N. Lewis, for Respondent.
   Cope, J. delivered the opinion of the Court

Field, C. J. concurring.

This is an appeal from an order granting a new trial. The plaintiff recovered a judgment, and the defendants gave the proper notice, and filed a statement of their grounds. The plaintiff filed a counter statement, but afterwards consented that a new trial might be granted. The defendants, upon receiving notice to that effect, asked leave to withdraw their proceedings, which was refused. A new trial was granted against their objections, and the appeal is taken by them.

We are satisfied that the order was irregular and should be reversed. The defendants had a right either to move or not to move upon the notice which had been given. Neither the plaintiff nor the Court had the power to control them in that respect. Choosing to abandon their proceedings, it was undoubtedly competent for them to do so. The order seems to have been based upon the idea that a motion was actually pending. This was not the case; and even if it were, the defendants had a right to withdraw it. All that had been done, however, was to give the notice and file a statement. The motion was never, in fact, made.

Order reversed.  