Porter & Ballard v. Jones

By the Court, Johnson, J.

The new trial below’ was granted upon a bill of exceptions. Under our decision in Moore and Westervelt, March T. 1852, an appeal might properly be brought in such a case. The point there decided being that where the new trial was granted upon a case in the court below, an appeal would not lie.' An appeal was accordingly lawfully brought on the 4th day of May 1852. The act of April 16, 1852, amending the Code and taking away our jurisdiction to review any decision granting a new trial, even when made upon a bill of exceptions, did not take effect until May 6, 1852. It was not until the June term that we were called upon to say whether the effect of that act was to take away our power to hear appeals which were lawfully taken before the repeal of sub. 4, § 11 of the Code, by the act of April 16, 1852, and our decision on the point has not yet been reported. The appellant was therefore, at the time of his offer to dismiss his appeal without costs, entitled to an order to that effect. His appeal having been regular when taken, and he having taken no step in the cause after our decision was made, we do not think costs should be given against the respondent for declining to allow the appeal to be dismissed without costs; it not appearing that our decision was known to him, and it having been so recently made that he could not reasonably be supposed to have become acquainted with it.