By the Court,
Thomas, J.:The petition in error in this case alleges but two rulings in the district court which are claimed to be erroneous.
The first is that the court refused to grant a change of judge, as provided for by the laws of Wyoming territory, the plaintiff having applied therefor and filed the usual affidavit. It appears by the bill of exceptions that by consent of parties this cause was set down for trial the sixth day of February, 1874, and that after the time of trial had so been fixed the plaintiff interposed his motion for the change of judge. We are of the opinion that while, in' ordinary cases, a party, on a proper showing, has a right to such change of judge, yet that a motion of this nature should be made promptly in due season, and certainly not for the sole purpose of causing delay, and that in this case the plaintiff, by omitting to file his affidavit until after he had consented to have the trial of the cause fixed for a day certain, and the cause had been called on' that day, thereby waived his rights under the statute which provides for a change of judge, unless the party so applying has just learned that facts exist *190from which he believes that a judge may be prejudiced against him, which facts should be alleged in the affidavit.
The second error alleged cannot be considered by this court, as it was neither assigned nor argued as error upon the motion for a new trial in the court below.
The decision of the district court is affirmed.