Cope, J. concurring.

The defendant succeeded on the trial below, and the plaintiffs appealed. On the appeal we affirmed the judgment. The defendant assigned by stipulation, error in setting aside an order overruling a motion for a new trial in this ease at a previous term to that of the last trial. We are asked now to consider the assignment. Having in the same case affirmed the final judgment in favor of the defendant, we do not see why we should be called upon to pass upon the merits of an interlocutory order, of which the defendant complains.

The respondent has been put to no cost in his assignment of error, and we can see no benefit which it would do him to reverse the order of the Judge in setting aside the order overruling .the motion for new trial; for if this were done, the respondent should not have the costs of the affirmance of the judgment.

We think, under the circumstances, we should not consider this assignment of error by the respondent.

Let the remittitur issue at once.