By the Court,
Dixon, C. J.In' this case the writ of error must be dismissed. It was sued out on the 30th day of August, 1864, upon a judgment on verdict entered September 1st, 1862. On the 21st of January, 1863, the plaintiff in error, defendant below, moved in that court to have the verdict set aside and a new trial granted, and prevailed upon the motion. It does not appear that the judgment has been formally vacated; but such an order would follow of course upon application in that court after setting aside the verdict and granting a new trial. The plaintiff in error cannot have both remedies. He cannot move in the court below for a new trial and obtain it, and then come here for the same purpose upon a writ of error. The order which he has already obtained upon the motion is a bar to his application upon this writ. See Second Ward Bank v. Upman, 14 Wis., 596.
"Writ dismissed.