22:I[98912,["/_next/static/chunks/0asocxi83kb~5.js","/_next/static/chunks/0n4z.7yu76je-.js","/_next/static/chunks/0eyt_ou8dj52g.js","/_next/static/chunks/01bcia3bjqt9z.js","/_next/static/chunks/15egrlmmf_yst.js"],"CaseDetailGate"] 23:T472,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.24:T488,

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.

25:T4ca,

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.