Coombs v. Hibberd.

[453]By the Court,

Niles, J.: The defendant having recovered judgment in the Court below, the plaintiff moved for a new trial, and the motion was denied on the 13th of July, 1870.

On the 21st of July the plaintiff gave notice of a motion to “ vacate the order denying a new trial, and to grant an order allowing the motion for a new trial to be reheard.”

The application was to be made “ upon the pleadings, statement on motion for new trial, stipulation of facts, the findings of the Court, and judgment roll.”

This motion was heard on the twenty-third of July following, and taken under advisement by the Court. On the twenty-ninth of July the Court made an order vacating the order denying the motion for a new trial and allowing it to be reheard; and on August thirteenth made an order granting a new trial.

The defendant appeals from both of these orders.

It will hardly be contended that under our form of practice a Court could entertain two successive motions for a new trial in the same case, upon identical grounds. The right to move for a new trial is a creature of the statute, and this statute provides for but one statement and one motion.

The motion to vacate the order was equivalent in its effect upon the parties to a renewed motion for a new trial. It demanded another hearing of a question once determined, and resulted in the granting of a new trial which had been once refused. If this practice should be allowed, several consequences, not contemplated by the statute, would ensue. The limited time within which a motion for a new trial may be made would be practically enlarged, for there can be no good reason why the motion to set aside the order should be made within a limited number of days. The proceedings after judgment would be interminable, for the last order could be vacated upon motion of the losing party, and so ad [454]infinitum. There must be some point where litigation in the lower Court terminates, and the losing party is turned over to the appellate Court for redress.