ON PETITION POE REHEARING.
AILSHIE, J.— Respondent has filed a petition for rehearing in which it is insisted that previous to the submission and determination of the motion for a new trial, the appellant’s counsel joined with counsel for respondent in a stipulation which amounts to a waiver of any error committed by the court in prematurely passing on the motion. This stipulation is as follows: “It is hereby stipulated and agreed that the motion of the defendant for a new trial herein be submitted to the court without argument, and without further notice to each party. And it is further hereby stipulated and agreed that the proposed amendment of the plaintiff to the defendant’s statement of the case, to be used on his motion for a new trial herein, may be adopted, and allowed by the court, and incorporated in said statement of the case. Signed and dated this the twelfth day of December, A. D. 1904.” An examination of the stipulation will at once disclose that the ■appellant only waived the right to make an argument upon the motion and notice of the time and place of the submission of the motion. The stipulation does not amount to a submission of the motion for a new trial as contended for by respondent, but, on the contrary, it specifically refers to the fact that the statement had not yet been settled. The clear import of this stipulation is that the motion should be presented and submitted in an orderly way, and after the settlement and allowance of the statement. The stipulation further recognizes the fact that the motion for new trial was to be made upon the statement which was thereafter to be settled and allowed by the court. We do not think the error in this case was either invited or waived by appellant. The case of Crosby v. North Bonanza Silver Min. Co., 23 Nev. 70, 42 Pac. 583, cited and relied on by respondent, differs from this case *536in that the stipulation which was there held to be a waiver of error provided “that defendant’s motion for a new trial is hereby submitted to lion. A. E. Chaney, who presided as judge in the above-entitled action, for his decision.” That stipulation, it will be observed, provided for an act in praesenti. It was an actual, present submission of the motion for a new trial, and left nothing further to be done antecedent to the determination of the motion by the court. We have found no good reason why a rehearing should be granted in this case. Upon receipt of the remittitur the trial court will take such further proceedings as may be necessary for the regular and orderly determination of the motion for a new trial.
Petition for rehearing denied.
Sullivan, J., concurs.