Page:North Dakota Reports (vol. 2).pdf/244

 defendant’s counsel then excepted, and on May 30, 1891, defendant perfected an appeal to this court from said order. Subsequently the plaintiff duly appealed to this court from the same order. In this court defendant’s appeal was dismissed on defendant's own motion, and counsel for defendant argued in favor of sustaining the order of the trial court granting the new trial. We do not consider it proper upon this appeal to pass upon the merits of any of the errors alleged in the bill of exceptions. The only question which will be considered is that of the validity or invalidity of the order vacating the verdict and granting a new trial. The order is clearly erroneous, and cannot be sustained without making a precedent which would tend to unsettle and confuse the law and the practice regulating the granting of new trials in the court below. When the order was made no intention to move for a new trial had been served, although more than three months had then elapsed after the verdict came into court; nor was there a motion for a new trial pending before the court. Nosuch motion was ever made by either party, nor was a new trial sought for or requested by either party at any time prior to the order granting a new trial. The order was a surprise to both parties, and was promptly excepted to by the defendant, and afterwards appealed from by the defendant. When the order was made the parties were before the court on a wholly different matter—a motion for judgment—and in the order denying plaintiff's motion for judgment the trial court set aside the verdict, and granted a new trial. It is true that a bill of exceptions was settled on the day the order was made, but the court did not hear counsel on any motion for a new trial based on the bill, and, as before stated, no such motion was ever noticed, made or entertained by the district court. The statute affords ample facilities for moving for a new trial, and sets out plainly what shall be done as preliminary to such motion. The motion may be made either upon the minutes of the court, upon affidavits, upon a bill of exceptions, or statement of the case; but in all of these methods a notice of intention to move is indispensible to the motion unless waived. None of these prerequisites to the motion had been complied with except to settle a bill of excep-