By the Court,
Kingman, J.This cause is brought to this court under paragraph 2 of section 4 of the -act amendatory of the Code passed Feb. 25th, 1860.
The plaintiff in error who was plaintiff below, obtained a judgment against the defendants and others on the 12th day of March 1864. On the 25th day of March thereafter, the following journal entry is made :
“ Now comes William Sargent, one of the defendants herein, and moves the court for leave to file a motion to reverse so much of the decree herein rendered at the present term as relates to him the said William Sargent, which said motion is by the court sustained, and leave is hereby given to said William Sargent to file said motion, and this cause is continued.”
On the 27th day of April, defendant filed in vacation the motion for a new trial, setting up as grounds:
*83“ 1st. Irregularity in tlie proceedings of the court, and of the prevailing party.
“ 2d. Accident or surprise, which ordinary prudence could not have guarded against.
“ 3d. Newly discovered evidence material for this defendant, which he could not with reasonable diligence have discovered and produced on the trial.”
On the 14th day of May this motion supported by affidavits was heard and a new trial awarded, to which the plaintiff excepted. Plaintiff also objected to the hearing of the motion, and upon his objection being overruled, excepted.
Either of the causes assigned is sufficient if made in proper time and in a proper manner. "Was this done in this case ? Section 309 of the Code, provides that, “ the application for a new trial must be made at the term the verdict, report or decision is rendered, and except for the cause of newly discovered evidence material for the party ajiplying, which he could not, with reasonable diligence have discovered and produced at the trial, shall be within three days after the verdict or decision was rendered unless unavoidably prevented.”
As the judgment was rendered on the 12th and there was no motion made of any hind until the 23d, and as there is no pretence of being “ unavoidably prevented ” from making the motion on the first two grounds at an earlier period, the defendants were precluded from setting up those grounds upon motion. The three days allowed by the law had elapsed, and the means of securing a new trial for those causes is by petition, as pointed out in section 311 of the Code.
Neither did defendants bring themselves under the provisions of the Code as to the last cause set up in their motion.
The journal entry made on the 23d does not even purport to be a motion for a new trial. It is a motion for *84leave to make a motion. No causes for the application are stated.
The defendant obtained leave of the court to do that which he had a clear and undoubted legal right to do without his motion; that is, to make an application for a new trial by motion.
Section 310 of the Code provides that the application must be by motion upon written grounds filed at the time of making the motion.
Had the motion been for a new trial instead of for leave to make such a motion, the motion must have been upon written grounds filed at the same time. This provision of the Code is but an affirmation of the ancient law, and is founded upon reasons so obvious that they need no comment. The anomalous motion made on the 23d seems to have been an attempt on the part of defendants to keep themselves in court by the expedient. It is a motion not known to the law, and is a nullity.
The objection of plaintiff to hearing the motion at the May term Was well founded. It was a motion for a new trial at a term subsequent to the one at which the judgment was rendered. An application for a new trial at such time on the ground of newly discovered evidence, must be made by petition. See sections 311 and 546 of the Code.
This conclusion. renders it unnecessary to consider the other points presented by the plaintiff in error. The case will be sent back to the District Court with directions to set aside the order granting a new'trial.
All the justices concurring.