The proceedings in this case, as shown by the record, were regular up to the time of overruling of the motion for new trial on January 21, 1920, but the proceedings since that time are so unusual and irregular that we are somewhat at a loss to say what should be done with this case. In order to get that part of the record in which these irregularities occur before us, we will state them in their order:
(1) Motion for new trial filed October 21, 1920 (page 71, case-made).
(2) Order overruling motion for new trial filed January 21, 1921 (page 76, case-made).
(3) Motion to vacate order overruling motion for new trial, filed March 8, 1921 (page 78, case-made).
(4) Order setting aside and vacating order overruling motion for new trial (case-made, page 82), March 8, 1921.
(5) Order staying execution pending determination of the court on motion for a new trial (page 80, case-made), March 9, 1921. Filed April 16, 1921.
(6) Order granting new trial, June 4, 1921 (case-made, page 85).
The motion to vacate the order overruling the motion for new trial, omitting the caption, is as follows:
"Comes now the defendant, above named Ben Sherman, and moved the court to set aside and hold for naught the orders of this court heretofore made on the 22nd day of January, 1921, overruling motion of defendant herein for a new trial in the above entitled and numbered cause."
This seeks to set aside an order made on the 22nd day of January, 1921, overruling the motion for new trial. This evidently is a mistake and is intended to be directed against the order entered on the 21st day of January, 1921. But what is this document, called motion, to set aside the order overruling motion for new trial? It does not state any reason why the order should be set aside and can hardly be called a motion, because motions are usually based upon some ground or reason for the court acting. But here no ground or reason is given, but for some reason, unknown so far as the record shows, it was acted on by the trial court, and without notice to plaintiffs or their attorneys. It would seem that the plaintiffs were at least entitled to notice of the filing of this motion and the subsequent proceedings. The order made on the 8th day of March staying further proceedings until the October term was not filed in the clerk's office until the 16th day of April, and we are inclined to think that this order was not made until the 16th day of April, 1921. We cannot see any reason if the order was made on the 8th day of March why it should have been held up and not placed of record until the 16th day of April. The addenda to this order made by the judge in his own hand writing is also mysterious, and then the taking up of the motion for new trial on the 4th day of June, 1921, after it had been continued until the October term is another matter we cannot understand. We are loath to impugn the motive of the court or counsel for defendant. But when the defendant concluded to file a motion to set aside the order overruling the motion for new trial made on January 21, 1921, the orderly way would have been to have served counsel for plaintiffs with a copy of said motion, and they should have had notice of all proceedings thereafter. They placed the plaintiffs in such a position that the only thing they could do to correct the irregularities was to appeal. While the court had a right to make such orders as it deemed proper during the term, they should not have been made without notice to counsel for plaintiffs, and we hold that the irregularities in the proceedings, after the order overruling the motion for new trial on January *Page 124 21, are so irregular as to amount to error, for which the case should be reversed and remanded, with directions to the court below to vacate and set aside all proceedings had in said case after January 21, 1921, and leave the case in exactly the condition it was in after the order overruling the motion for new trial was entered on January 21, 1921.
By the Court: It is so ordered.