In this ease, there had been & trial and verdict, preceding the following order: “ The Court being advised of the premises, grant the defendant a new trial by him paying the costs of the last term of the Court in 90 days.” Said costs were paid before the first day of the next term—but not within the ninety days. For this reason the Court entered judgment on the verdict; which action is complained of as erroneous. Was the latter ruling correct? This is the only question.
It appears to us the grant of the new trial was, by this order, made to depend upon the performance of the terms of the order, namely, the payment, &c., within the time limited. In other words, that part of the order prescribed a condition precedent. Upon the failure to perform that condition, the right to the new trial, under the order, no longer existed; and the judgment was correctly rendered, in the absence of any further showing by the party applying therefor. The opposite party had a right to appeal to the record, and determine, from an examination of the same, whether he should prepare for trial or not, at the ensuing term of the Court. 2 Tidd’s Prac. 917; Stephenson v. Mansorry, 4 Ala. 317; Somers v. Sloan, 3 Harr. 46; Jackson v. Eddy, 2 Cowen, 598.
Per Curiam.The judgment is affirmed, with 3 per cent, damages and costs.-