Emerson v. Barron

WALLACE, C. J. — In October, 1873, an order was entered in the court below granting the defendant a new trial, upon condition that he pay to the plaintiff all the costs which had theretofore accrued in the action. In February, 1874, the remittitur from this court, affirming the order, was filed in the court below, and no part of the costs having been paid or tendered, the plaintiff’s attorney, on the twenty-fourth day of February, 1874, served a written notice upon the attorney of the defendant, to the effect that he would on the second day of March next thereafter apply to the court below for an order declaring the order granting a new trial inoperative, by reason of the failure of the defendant to comply with the condition therein mentioned, and that execution issue upon the judgment theretofore rendered in the cause. To this notice the defendant’s attorney does not appear to have made any response, and pursuant to the notice the application was made to the court — no opposition being then made — and the motion was taken under advisement by the court, and the cause continued for the term. Subsequently, on the next day but one thereafter, the court being still in session, and the attorney for the plaintiff being present in court, the attorney for the defendant moved the court to set aside the order continuing the cause, and restore it to the term calendar, and it appearing that the continuance had been granted by reason of the absence of a witness for the plaintiff, and the defendant then proposing to consent that the evidence of the absent witness should be considered as given at the trial, the court set aside the continuance and reinstated the cause upon the'calendar; but the attorney of the plaintiff declined to avail himself of the proffered consent, or to state what he expected to prove by the absent witness. It then being made to appear to the court that the defendant’s attorney had only subsequently to the submission of the plaintiff’s motion to disregard the order granting a new trial, to wit, on the third day of March, tendered to the plaintiff’s attorney the costs required to be paid as the condition of obtaining a new trial (which costs the latter had refused to accept), the court denied the motion of plaintiff to disregard the order granting [881]the defendant a new trial, and subsequently rendered a judgment dismissing the action.

1. There can be no doubt that the order granting the defendant a new trial was not absolute in its terms, but was conditional only. It was so expressed upon the face of the order “conditioned upon said defendant paying to plaintiff the costs,” etc. In such case the payment or tender of the costs is a condition precedent, and upon failure of the party in whose favor the order was made to perform it, or offer to do -so, the order becomes inoperative: Sturdevant v. Fairman, 4 Sand. (N. Y.) 674.