The facts sufficiently appear in the opinion. This appeal is taken from a judgment and an order.
The respondent asks us to dismiss both appeals. The appellants confess the motion as to the appeal from the judgment, and resist the motion as to the appeal from the order. *Page 180
By the judgment the respondent was awarded 240 square inches, under six-inch pressure, of the waters of the Muddy river, flowing through certain ditches therein named, for the purpose of irrigation. The appellants interposed a motion for a new trial, based upon a statement. On the 17th day of December, 1900, the court ordered "that if written consent to a modification of the judgment in this case so far as to limit and restrict the right and use of the plaintiff to 45 square inches of water, running under a six-inch pressure, between noon of the 1st day of July of each year and noon of the 1st day of February of the following year, is filed herein on behalf of the plaintiff within sixty days, then the motion for a new trial shall be deemed denied, but otherwise shall be granted."
The appeal was taken from this order on the 9th day of January, 1901. On the 13th day of February, 1901, the respondent filed what is termed his "written consent" to the modification of the judgment as required by the order, in which he states that "in order to avoid the expense of a new trial, and without waiving any of his rights, but adhering to the same, consents to such modification, on the condition that no further proceedings shall be had in said case."
The respondent claims that the appeal from this order was taken prematurely; that the order did not become effective as a denial of appellants' motion until the written consent of the modification was filed on the 13th day of February, 1901.
While this court has refused to consider appeals taken prematurely, and dismissed the same, yet the showing made for and against the motion presents a new and peculiar question, which determines the appeal; and we therefore do not consider respondent's motion further than is necessary in passing upon the main question — as to whether there is anything in the order, under the showing of the record, from which appellants have the right of appeal. It is a general rule that, unless the statute restricts the court, it has the power to impose reasonable terms as a condition to the granting or denying a motion for new trial. (Hayne, New Trials, 166, et seq.; 14 Enc. Pl. Prac. p. 939.)
We have been unable to find any such restrictive provision *Page 181 in our statute. While the order of the court quoted is peculiarly worded, yet, when considered as a whole, it is clear that the order, in effect, granted a new trial unless the respondent consented to the modification prescribed therein; and, in case of his failure to comply with the requirements of the order, then the right to a new trial became absolute. No conditions were imposed upon the appellants, and the acceptance of the conditions imposed upon the respondent by the order could not be made by him, so as to preclude the rights of appellants to appeal. The record shows that the respondent did not consent to the conditions of the order. He, in express terms, imposed conditions in his written consent not authorized by the order, and which the court, under the record in this case, was powerless to impose. Respondent could not, by incorporating into his written consent conditions which might relieve him of the effect of the modified judgment, preclude any rights of the appellants. If he claimed the benefits of the order, such claim must be made unconditionally. There was, in effect, no compliance with the terms of the order, and it thereupon became an order absolutely granting a new trial.
The appellants cannot successfully claim that they are aggrieved, and, so far as this record shows, there is nothing before this court which can be considered. The case stands for retrial in the court below.
*Page 182For these reasons, the appeal will be dismissed.
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