(dissenting.) I cannot agree with my brothers in the expression of the opinion as above announed, except as to the first question presented. In this I fully concur. In my opinion the court below erred in denying the motion for a new trial without hearing it upon its merits. The record in the case shows the cause was tried on the 18th day of June, 1889, and a verdict was rendered for the plaintiff, but no judgment entered. July 1st, the defendant served a notice of intion to move for a new trial, and on the 10th day of August a stay of proceedings was obtained. On the 20th of September, 1889, the parties stipulated to argue the motion for a new trial upon the ground of the insufficiency of the evidence to justify the verdict, that the verdict was contrary to law, irregularity in the proceedings on the part of plaintiff, and errors of law occurring at the trial. Neither the original record nor the abstract shows that the motion for a new trial was ever argued, entertained, or determined by the court that tried the cause. On the 30th of November the plaintiff served a statement of costs, and a notice of taxation of same, to»be had on the 3d of December. On that day defendant appeared before the clerk, and objected to the taxation of costs for the reason that a motion for a new trial had not been heard or determined by the courti The taxation of costs was then continued by the clerk until the 13th of December, and, upon due consideration by him o.f the objections as raised by the defendant, they were sustained; but subseqently, and for what reason the record does not disclose, the clerk did, in the absence of and without notice to the defendants, tax the costs, and enter judgment *615against them, and issued an execution thereon. January 7, 1890, the circuit court made an order requiring the plaintiff to show cause why the judgment should not be vacated, returnable on the 18th of that month. On the 20th of January the parties stipulated in writing that the matter should be continued until the 30th. On that day it was again continued until the 15th of March, and on that day continued until the 29th of March, and on that continued until April 22d, and on that day continued until June 17th; at all these times the defendants appearing, and anxious for the matter to be heard and disposed of by the court. On June 3, 1890, the parties, by their respective attorneys, made the following stipulation in writing: “It is hereby stipulated and agreed by and between the above named parties in the above entitled action, by their respective attorneys, that the motion for a new trial in the above entitled action heretofore submitted to the Hon. James Spencer, judge of the district court in and for the county of Kingsbury, Territory of Dakota, now State of South Dakota, and in which said judge has failed to sign an order either granting or denying the said motion, that the said motion for a new trial, and the proceedings thereon, be submitted and argued before the circuit court to be held at the court house in the city of De Smet, in and for the county of Kingsbury, State of South Dakota, on the 17th day of June, 1890, at the hour óf the opening of said court, or as soon thereafter as counsel can be heard.” On the 17th day of June the motion for a new trial was taken up, and the plaintiff for the first time raised the question that the motion had been made, heard, and determined by overruling it, but no order had been executed, signed or made a part of the record of the case; and to support this position he introduced the affidavit of bis attorney, tw.o letters from the clerk of the court, a letter from the ex-judge, and an old wrapper. Thereupon the court refused to hear and determine the motion for a new trial upon its merits, It is this refusal to hear the motion, of which the appellants complain.
From the above detailed statement of the proceedings it appears:
*616First. That the clerk of the court taxed the costs of the action against the defendants, and entered judgment without notice to them, while the motion for a new trial was pending and undetermined. The record shows that on the 20th of September a motion for a new trial was filed after due notice to the plaintiff. Here the record ends until November 30th, when the defendants were served with notice of taxation of costs, to be made December 3d. Objection was made at that time to the taxation of costs upon the express grounds that a motion for a new trial was then pending and undetermined; and on the 13th of that month the clerk sustained the objection, and refused to tax the costs, but subsequently he did tax the costs, and entered judgment against the defendants, in their absence, and without notice to them, or with their knowledge or consent. Section 5167, Comp. Laws, provides that taxatian of costs can only be made upon application of the prevailing party, and only upon five days’ notice being given to the other party, and. the costs must be stated in detail and verified, and a copy of these items must be served with the notice of adjustment. The un disputed facts disclosed by the record show that the costs in the case were taxed and entered in the judgment without notice to the defendants, and without their knowledge or consent; and, under the circumstances surrounding the case, they could well have presumed that no such proceedings would be entertained by the clerk, inasmuch as he previously- held that the objections interposed were valid and good. The action of the clerk was not authorized by the statute, and this irregularity on his part was made one of the grounds for a new trial; and, inasmuch as these proceedings were had subsequently to the filing of the first motion for a new trial, it was error on the part of the court to refuse to hear the motion as presented to it, even if the first motion had been heard and determined by the district court.
Second. The record shows that no order was ever made overruling the motion for a new trial, nor was there anything on file showing any action of the court in relation to the motion. Whether it was ever heard or argued or submitted to *617the court is left to conjecture. But an attempt was made to substitute or make a record by the introduction of letters from the clerk of the court and ex-judge, and affidavit of the attorney for plaintiff. Without impeaching the admissibility or competency of such evidence to establish the record of a court, the facts stated in these letters and affidavits fail to show conclusively that the motion for' a new trial was ever heard or submitted to the court, except inf erentially. One of the letters of Clerk Lawrence says: “My recollection of the matter is that I think there is endorsed on the wrapper one paper in pencil as follows: ‘Motion for new trial overruled. J. S.’ These may not be the exact words, but it is the sense of them.” The other letter says: “I send the papers, * * * but I find the endorsement I referred to in pencil has been so nearly obliterated that I cannot decipher it; in fact, there is nothing there now to certify to. ” The ex-judge says the motion for a new trial was denied. The affidavit of the attorney states that the judge denied the motion for a new trial, but never made or signed any order to that effect. It was upon this evidence that the court below in its order says “that said motion for a new trial was made before Judge Spencer aforesaid, and by him overruled, but no order signed; and therefore this court refuses to hear and determine the motion for a new trial, for the reason aforesaid.” Even taking this evidence as competent to establish or replace a record of a court, — which is extremely doubtful, — it is entirely insufficient upon which tobase so important a matter. The hearing and determining of a motion for a new trial is one of the substantial rights of parties before a court, and, when properly made, they have the right to a determination and record of the same; and, in the absence of the record, only the most convincing and conclusive proof should be admitted to establish this fact. The granting of a motion for a new trial is largely with'n the discretion of the trial court, and, when rightly exercised, should not be disturbed; but when this discretion has been exercised in an apparently arbitary manner, to the detriment of the rights of litigants, it should be reviewed.
*618Third. The record shows that on the 3d day of June both parties stipulated in writing that the motion for a new trial, previously made before the court, should be submitted and argued again. This stipulation upon the part of the parties was in the nature of a solemn agreement to submit the questions involved in the motion to the court, and a virtual acknowledgment that they had not been submitted in such a manner and form as to give to the party aggrieved his just rights before the law; and in the absence of any record of this fact it was no more than just and right that the court should have required the parties to have abided by it, and have taken up the motion and heard it, and made its determination upon the merits. The repeated postponements of the hearing of the motion, and the constant attempts of the defendants to have it entertained by the court, the loose and unsatisfactory manner in which the record of the case was kept, and the incompetent and insufficient evidence upon which th'e court established the previous determination of the motion for a new trial, in my opinion entitle the defendants to have the motion for a new trial heard upon its merits.