By the Court,
■ The trial in this case resulted in a verdict in favor of the defendant, whereupon the plaintiff gave notice of motion for new trial
There was not in this case an attempt even to specify the errors upon which the moving party intended to rely, and still it appears that the statement was acted upon in the Court below, and that the new trial was granted upon it. By the clear and unmistakable language of the section referred to, it was the duty of the Court below to disregard the statement thus deficient; and as there was no pretense of any grounds for new trial except such as were presented in the statement, the order granting it was unauthorized and erroneous. To avoid this consequence, however, it is argued by the respondent that as no objection to a consideration of the statement was made in the Court below, the appellant must be deemed to have waived it, and therefore it cannot be raised in this Court.
But in answer to this it may be said, it does not appear from the record here whether any such objection was interposed in the Court below or not. Nor indeed could it be brought to the attention of this Court upon an appeal of this kind. The section already referred to further declares that “ The affidavits and counter-affidavits, or the statement thus used in connection with .such pleadings, depositions, documentary evidence on file, testimony taken by a. reporter, and minutes of the Court, as are read or referred to on the
Upon an appeal, then, from such order, any objection or motion which might be made by the opposing party respecting the record could not be brought to this Court. This informality or defect in the statement was undoubtedly a good ground for' denying the motion. Had the Court discovered it before the order was made it could have placed its denial upon the sole ground that there was no such statement before it as could legally be considered. The only ground then upon which it could be claimed that this objection cannot be raised in this Court, is, that it was waived by the appellant in the Court below. There is, however, nothing in the record before us to warrant the conclusion that it was waived. For aught that appears here, the objection was made at the proper time. It will not be claimed that it is incumbent on the appellant here to show that he did not waive the objection. It is always the duty of the person wishing to avoid the consequence of error in legal proceedings, upon the ground of waiver by the opposite party, to show such waiver, and not upon the person insisting on it to establish the negative.
The record presented to us clearly shows that the statement on motion for new trial should have been disregarded by the Court below, and that instead of so doing it granted a new trial upon the showing made by it. It is thus made to appear that the Court erred in making the order. If the appellant in any way waived his right to insist upon such error, it is the duty of the respondent to show such waiver; otherwise, it is available here as in the Court below. Let it be supposed that in a case where the errors relied on were such as would only he presented by a statement, and no , statement were filed, but still a new trial is granted : surely, nothing further would be necessary for the party opposing such motion than to make the showing to this Court that the order was made without a statement. It would not be necessary for him to show further that he objected to the hearing of the motion, or in any way excepted to the action of the Court. So here the statement, until the errors to be relied on are properly specified, is virtually no
Again: We know of no way by which an objection to the statement, or a motion to strike it out, could be brought to the attention of this Court, except by a separate statement on appeal; and it is very doubtful whether it could be brought here even in that way. But admitting it can, we think it quite clear such a course was never intended to be required by the Legislature. The purpose evidently was to allow all points which could be urged in the Court below, either for or against the motion for new trial, to be raised on the appeal from the order granting or refusing it, without any further statement; otherwise, why are the statement and papers used on such motion made the record upon which the order is to be reviewed in the Appellate Court ? And why, as appears to be the case, is this Court confined to an investigation of the statement and papers used on such motion. It is certain that no objection to the statement or motion to strike it out would come to this Court under the provisions of section one hundred and ninety-seven of the Act already quoted, upon a mere appeal from the order. As a consequence, it either could not be brought here at all, or it must be presented in a separate statement, setting forth the fact that such objection or motion was made — a practice which seems to be entirely unauthorized, and evidently not contemplated by the Legislature. And if not authorized, then the appellant would be entirely deprived of any advantage from such objection or motion, even if it
These considerations have conducted us to the conclusion that it was the duty of the Court below to disregard the statement, and refuse a new trial. The order granting it was therefore erroneous, and must be set aside.
It is so ordered.