The motion to expunge the order from the record was based upon two grounds. In the first place, it was claimed that there was no consent to a decision of the case in vacation; and, in the second place, that the order was void because not filed in the office of the clerk until the term of office of the judge who made the order had expired.
1. Judgment: in vacation: consent. As to the first point, we have to say that we think that the case was one which, by consent, might be determined in vacation, and that the evidence shows that such consent was given. The judge evidently sounder-stood .it, and it appears to us that he was justified in so understanding it.
2.-: -: filed after expiration of judge’s term of office: validity. The question as to the validity of an order or decree reduced to writing, but not delivered to the clerk to be filed until the term of office of the judge who made the order or decree has expired, is one upon which this court has not been agreed. But a majority of the court are of the opinion that the failure to deliver the order or decree to the clerk during the term of office of the judge who made the order or decree *746does not render it invalid. Babcock v. Wolf, 70 Iowa, 676. Sncli being the ruling of the court, it must be held that the court erred in sustaining the plaintiff’s motion to expunge the order from the record.
3. Appeal: when.it lies. The appellee contends that an appeal does not lie from .the order sustaining the motion, but we think otherwise. In sustaining the motion to expunge the order from £jie recor(J5 the court virtually granted a new trial. Code, § 3164, subd. 3. Reversed.