By the Court,
Páiiste, J.The circuit court was right in retaining jurisdiction of the proceeding, inasmuch as the return of the arbitrators showed service of the original notice of appeal upon them within the time required by law. So that whether the service stated in the affidavit of Grillet was sufficient or not, the return by them that there was a service must be taken as true and held sufficient.
The only other question is, whether the court erred in denying the motion for a new trial. We have decided at the present term that notwithstanding the Code gives an appeal from orders granting or refusing new trials, it was not the intention to change the old rule that those motions are addressed mainly to the discretion of the court, and that its action will not be reversed unless that discretion was abused. And we cannot say here that the circuit court did not properly exercise its discretion in denying the motion. The affidavits of Gillet, Hodge and the plaintiff, which do not appear in the printed case, fully rebut the idea that the defendant’s counsel had any right to rely upon the case not being tried at\that term. The notice of trial informed them that it was to be tried, and the affidavits show that the plaintiff’s attorneys made repeated efforts to secure a stipulation to change the cases to Pond du Lac county, without success, and that they informed the defendant’s attorneys, at the time the notice was served, that they were still willing so to stipulate, but unless such arrangement was effected, the case must be tried according to the notice. There was therefore *359no ground of surprise in tbe fact tbat tbe plaintiff urged tbe case for trial. •
Gonnit’s affidavit states tbat tbe plaintiff’s attorneys told bitn tbat tbey and tbe witnesses wer& going borne tbe next morning, and tbat tbe case would not'be tried; and tbe affidavits on tbe other side give no explanation of this. Still we tbink bis own affidavit does not make out a case of surprise. In tbe first place be fails to show tbat be was there managing tbe case, or for tbe purpose of assisting in it at all. On tbe contrary, be states that be did not know be was one of tbe attorneys of record, until be came to Portage City where tbe trial was. He does ñot show tbat tbe defendant’s attorneys acted on those statements, or were thereby prevented from being present at tbe trial, or from doing anything tbat tbey otherwise would have done to get ready for tbe trial. It also shows tbat be himself knew or suspected, notwithstanding those statements, tbat tbe trial was to take place, in time to have been present if he bad desired, and tbe record shows tbat'the counsel for tbe defendant were present. We tbink the affidavit, when carefully examined, shows no ground for tbe pretense tbat tbe defendant’s counsel were misled by the statements referred to, or failed to do anything that they otherwise would have done in consequence of them. And tbe consciousness tbat there was really no foundation for such a pretense, was probably tbe reason why this part of tbe affidavit was not denied or explained by tbe other side.
There is much in tbe affidavits going to show a studied effort on tbe part of tbe defendant to .prevent a trial. And we cannot say, upon tbe whole affidavits, tbat tbe court erred in denying tbe motion.
Tbe judgment is affirmed, with costs.