Decided August 13, 1912.
Rehearing denied October 15, 1912.
On the Merits.
(126 Pac. 3.)
delivered the opinion of the court.
6. It is practically conceded that, if the order granting a new trial was valid, defendant is out of court, and we will first consider that question. Section 176, L. O. L., provides that upon trial by the court, when the decision is given in vacation, the motion for new trial shall be filed within 20 days from the filing of the decision. This was done in this case, and we are of the opinion that it was seasonably filed.
7. The provisions of Section 175, L. O. L., which are filed and entered in vacation after the expiration of the term, can have no application to cases where decisions are filed and entered in vacation after the expiration of the term.
*1428. It is urged by respondent that there is nothing in the record showing that the term had expired at the time the judgment was entered; but the findings are entitled “In the Circuit Court of the State of Oregon, for Tilla-mook County, after the regular April, 1910, Term of said Court.” This record is conclusive as to the fact that the term had then expired.
9. It is also urged that, as the motion for new trial was not signed by the attorney for plaintiff, it was a mere nullity, and that for this reason the order granting the new trial was void. We think this was a mere irregularity, which misled nobody. Plaintiff’s attorney certified to the correctness of the copy served upon defendant, and his return appears upon the original motion on file in the court.- The court knew and the attorney for defendant knew who was pressing the motion, and to hold the proceedings void under these circumstances would be sacrificing substance to an unprofitable technicality.
10. In addition to the reasons above given, it appears from the record that the defendant appeared in court and argued the motion, and such appearance was a waiver of any irregularity in the matter of subscription of the names of the attorneys thereto.
11. Counsel for defendant claims that the record is erroneous in respect to his appearance at the hearing of the motion; but upon appeal we are bound by the record, and the proper course would have been for defendant’s counsel to have moved during the term to have the record amended to conform to what he claims was the fact.
12. As the case now stands, it appears that the court granted a new trial on November 14, 1910, and that on November 17, 1910, a jury trial was had, resulting in a verdict and judgment for plaintiff, and that later in the same month the court adjourned for the term. No *143attempt was made by defendant to secure a new trial or a vacation of the proceedings until after the beginning of a new term, when this motion to vacate and cancel the order and judgment of the previous term was filed and allowed.
The court was entirely without jurisdiction, after the previous term had expired without any motion for that purpose having been filed by defendant, to vacate or annul the previous order and judgment given by Judge Burnett. Deering & Co. v. Quivey, 26 Or. 556 (38 Pac. 710); Brand v. Baker, 42 Or. 426 (71 Pac. 320). If the order of Judge Burnett, granting a new trial, was erroneous, defendant’s remedy was by appeal. We cannot review it in this proceeding, holding, as we do, that the court possessed jurisdiction to make it.
It follows from the foregoing that the judgment appealed from is reversed and set aside, and the order of November 14, 1910, and the judgment of November 17th are adjudged to be in full force and effect.
Reversed: Rehearing Denied.
Mr. Justice Burnett took no part in this decision.