OPINION OP THE COURT.
HANNA, J.(after stating the facts as above) — The defendant in error relies upon two propositions in support of his motion to dismiss the writ of error, the first being that the pendency of a motion to set aside a judgment when filed in due time suspends the operation of the original judgment or decree so that it does not take final effect for the purpose of a writ of error until such motion is disposed of. It is contended that this proposition is supported by the case of Irrigation Co. v. Lee et al., 15 N. M. 567, 578, 113 Pac. 834, and the case of Dye v. Meece, 16 N. M. 191, 113 Pac. 839. The case of Memphis v. Brown, 94 U. S. 717, 24 L. Ed. 244, is also cited and was the authority relied upon in the case of Irrigation Co. v. Lee, in which case the territorial Supreme Court held it to be the rule:
“That the pendency of a motion to set aside the decree when filed in due time clearly suspends the operation of the original decree so that it does not take final effect for purposes of writ of error until such motion is disposed of.”
The holding in this case was followed in Dye v. Meece, but it is to be borne in mind that the territorial Supreme Court was considering the effect of the pendency of the motions from a different standpoint than is now presented for our consideration.
In the case of Irrigation Co. v. Lee, the question presented was whether the judgment was final or interlocutory. In the case of Dye v. Meece, the question turned upon the fact of whether or not the motion to vacate the judgment suspended the judgment, and the effect of sucli suspension upon the time within which an appeal mus* be taken. In both cases the motions in question had not only been presented to the court for consideration, but had actually been acted upon and were a part of the record. In the present case it is contended that plaintiff in error had a right to abandon either or both of the motions, and that neither was essential to his right to sue out a writ of error. Plaintiff in error further contends that the suing out of the writ of error before the consideration of the motion to set aside the judgment was an abandonment of that motion, or, in effect, a waiver of the necessity for the consideration of the motion by the district court which was divested of jurisdiction over the cause when the writ of error was sued out.
Another contention is made by plaintiff in error that neither of the motions filed in the trial court were necessary to the consideration by the appellate court of tho questions involved. But little authority is cited, or found by us in' our investigation of this question, that throws light upon the subject.
Going to the last contention of plaintiff in error, we have found a case decided by the Supreme Court of Iowa (Hunt v. Iowa Central R. Co., 86 Iowa, 15, reported in 52 N. W. 668, 41 Am. St. Rep. 473), where the effect of a motion for a new trial, which was undisposed of at the time an appeal was sued out, is considered from the standpoint of whether or not the cause had been finally disposed o.f by the district court at the time the appeal was taken. By the terms of the statute of Iowa a motion for a new trial was not necessary to the review on appeal, and therefore the motion to dismiss the appeal was overruled. We are inclined to agree with the reasoning of this case, as we do not think it is proper for this court to .add to the difficulties attending judicial procedure. The modern tendency is to simplify procedure so far as possible, and we think it is consistent with reason and common sense to hold that a party to litigation may elect to abandon any step in the proceedings which he neglects to call to the attention of the trial court. It is customarily held that parties to litigation may waive a right by course of conduct when they elect to forego the benefits of that right, or to pursue another course.
As suggested by Mr. Bowers in his Law of Waiver, at section 65:
“It is well settled in law tliat a party having the privilege of following either of two inconsistent remedies who makes an election of one, commences his action thereon and prosecutes it to final judgment or receives anything of value thereunder waives the right to thereafter pursue the other inconsistent remedy.”
It is also stated by the same author that “a man may not take two contradictory positions.”
While the text quoted has no particular application to the present ease, it points to the general policy of courts in matters bearing similar analogy in point of principle to the question here under consideration. It is not to be gainsaid that the plaintiff in error in this cause could have gone into the district court and sought leave to withdraw either or both of his motions from consideration by the trial court, and secured the consent of the trial court to strike the same from the files. Had he done this, there would be no question in the present case. He has, in effect, shown his intention to abandon the motions by suing out' his writ of error, and ’ thereby depriving the trial court of jurisdiction over the cause by bringing the matter here for review. He could not ask consideration ■of either of the motions filed subsequent to judgment in the court below, and has, in effect, said that he considered the motions unnecessary to a review of the cause and ■elected to assign no error relative thereto, but seeks to review the case upon the record made without consideration of either of such motions. It is clearly an election to abandon any rights he may have had growing out of ■either of said motions, and we believe the greater good is to be subserved in a construction by this court that his action amounts to an election to waive the motions and proceed with the cause as though neither of them had been made.
The second proposition relied upon by defendant in error is that the complaining party, in order to avail himself of alleged error, must in some manner call the attention of the trial court to the claimed error in order to give the trial court an opportunity to avoid the same. This question may properly be presented on final hearing on the merits, but, in so far as the present motion is concerned, is of no consequence.
We therefore hold that the pendency of a motion, not necessary to the perfecting of an appeal or writ of error, will in no wise invalidate the appeal or writ of error, while such motion is pending and undisposed of, will be considered as an abandonment of the pending motion in the trial court. The motion to dismiss is therefore overruled, and it is so ordered.
Boberts, C. J., and Parker, J., concur.