Page:Federal Reporter, 1st Series, Volume 9.djvu/263

 248 FEDERAL REPORTER. �defendants for costs. On the seventeenth of Mardi, 1880, on motion filed the day previous, an order was entered vacating the judgment, and granting a new trial under.the statute as of right, the costs havingbeenpaid, and thedeath of defendant Smale was suggested. On the seventeeth of May, 1881, the plaintiffs entered a special appearance by counsel who had not lieretofore appeared in the case, and moved the court to set aside the order vacating the judgment and granting the new trial, among other reasons because— �(1) The motion for a new trial was not made by John A.SinaIe,nor by his heirs, assigns, or representatives, he being the only defendant against whom a judgment of ejectment was rendered, and that Smale had died between June 6, 1879, and March 16, 1880, to-wit, in September, 1879; (2) that the motion for a new trial does not disclose that any judgment in ejectment had been rendered. �It is urged, in opposition to the motion by counsel now for the first time appearing for defendants, that Smale's co-defendants occupy such a relation to the issue which was tried by the court as to be affected by the judgment, and that, therefore, they are within the let- ter and spirit of the statute, which allows the unsuccessful party a new trial as matter of right ; that the application for a new trial waa made for the benefit of Smale's heirs as well as his co-defendants ; that the statute is remediai and should be liberally eonstrued; and that the motion to vacate cornes too late. �Section 601 of the Code provides — �That the court rendering the judgment, at any time within one year thereafter, upon the application of the party against whom the judgment is rendered, his heirs or assigns or representatives, and upon the payment of al) costs, and of the damages if the court so direct, shall vacate the judgment and grant a new trial. �Section 602 provides — That if the application for a new trial is made af ter the close of the term at which the judgment is rendered, the party obtaining the new trial siiail give the opposite party 10 days' notice thereof before the term at which the action stands for trial. �After all the defendants had been served with process, and before any of them had appeared to the action, the plaintiffs liled an amended or separate complaint, embracing only part of the lands described in the original complaint, against the defendant John A. Smale alone. Shortly after this was done the court ordered that the amended com- plaint should thereafter stand as the complaint in the case. The controversy was thus limited to one between the plaintiffs and the defendant Smale, so far as the lands described in the amended com- plaint were concemed. No issue was tendered by the amended complaint to any one but Smale, and no rights of his co-defendants in the original complaint to the land described in the amended corn- ��� �