O'Rourke

The jury returned a verdict in favor of the plaintiff for $1,000 in an action for personal injuries. In due time the defendants, who appeared by the same attorneys, served notice of their intention to move for a new trial, specifying the grounds upon which the motion would be made. On the hearing of the motion, December 2, 1907, the court made an order granting the said motion unless the plaintiff should, within twenty days, consent that the judgment be reduced to $750, in which “event an order will be made denying said motion.”

Within the twenty days plaintiff filed his written consent that the judgment might be reduced to $750, and the court thereupon, on December 12, 1907, made an order “that the motion for a new trial be and the same is hereby denied.” On January 7, 1908, the defendant Finch (appellant herein) duly filed and served upon plaintiff a notice of appeal from the order so made and entered on December 12th, denying the motion. On February 4, 1908, the court made an order, directing that the judgment be reduced according to the prior consent of the plaintiff to $750; that such order be entered ■nunc pro tuno as of December 12, 1907.

Upon the above facts as shown by…