
    James M. Atkins v. Lewis Atkins.
    New Trial — Appeal from an Order Granting a New Trial.
    A judgment granting a new trial in an action prosecuted under the provisions of Sec. 344 of the Civil Code of Practice (Bullitt) is final, and an appeal may be taken from it.
    
      APPEAL FROM WHITLEY CIRCUIT COURT.
    April 16, 1878.
    
      R. D. Hill for appellant.
    
    
      John Smith, for appellee.
    
   Opinion by

Judge Lindsay :

A judgment granting a new trial in an action prosecuted under the provisions of Section 344 of the Civil Code of Practice (Bullitt) is final, and an appeal may be prosecuted from it. McCall v. Hitchcock, 9 Bush 66.

The judgment in this case was rendered at the May term, 1877. The record does not show the day of the month upon which it was entered. The assignment of errors was filed August 22, 1877. We cannot say it was filed within ninety day after the judgment became final.

Appellant caused the entire record to be copied. Hence there is no ground to complain that a schedule setting out those portions or the same he desired to have copied was not filed.

The petition of appellee is fatally defective. Appellant’s demurrer should have been sustained. The mistake of counsel growing out of the fact that he did not attend each morning as he should have done, to hear the orders of the court, entered on the preceding day, read before being signed by the judge, constitutes no ground for a new trial.

Most of the facts relied on by appellee in his petition were known to him before the judgment in the original cause was rendered, as appears from the exhibit filed with his said petition. They were not presented at the proper time, because the counsel was mistaken as to the effect of the order, of which he'was bound then to take notice.

Appellee claims that the judgment was obtained by fraud. But that fraud seems to have consisted in appellant’s failure to assist him in making out his defense. It is not averred that the appellant! abused any process of the court, or concealed or misrepresented any fact about which he was bound to speak, or that in the preparation or prosecution of his action he did any fraudulent act, or made any fraudulent concealment.

Judgment reversed and cause remanded with instructions to sustain the demurrer to appellee’s petition, and for further proper proceedings not inconsistent with this opinion.  