Plaintiff abandoned his motion by failing to appear, and the order denying it cannot be reviewed. The only remedy was an application to the Court below to open the motion.
JUDGES: Field, C. J., delivered the opinion of the Court. Baldwin, J., concurring.
OPINION
FIELD, Judge
The motion to set aside the report of the referee, and for a new trial, was denied, as no one appeared on behalf of the plaintiff in its support. This failure to prosecute was a virtual abandonment of the motion, and the order made thereon is not, in consequence, the subject of review on appeal. The precise point was decided in Mahoney v. Wilson, ante 42.
This disposition of the order leaves only the appeal from the final judgment, and upon this appeal there is no statement. The case, therefore, rests upon the judgment roll; and as this discloses no error, the judgment must be affirmed.
So ordered.