(after stating the facts as above). The defendant and appellant is not in a position either to ask for an extension of time in which to file his specification of error, or to have the record remanded so that this may be done. By consenting to the motion for a new trial, both by his statement to the trial judge before the making of the order, *579that he believed it necessary, and that he would stipulate that the order might be made, and by appearing when the case was called for trial, and asking that it be set for a day certain, without raising any objection whatever to its trial, or suggesting that he still insisted upon his right to appeal, and only seeking to assert the same upon the evening before the day on which, the trial was to be had, defendánt appeared, as it were, in that new trial, and submitted once more to the jurisdiction of the trial court, so that his right to an appeal was waived.
The motion of the plaintiff is granted, while that of the defendant is denied.
Burke, L, being disqualified, did not participate.