Field, C. J. concurring.

This is an appeal from an order granting a new trial. The plaintiff recovered a judgment, and the defendants gave the proper notice, and filed a statement of their grounds. The plaintiff filed a counter statement, but afterwards consented that a new trial might be granted. The defendants, upon receiving notice to that effect, asked leave to withdraw their proceedings, which was refused. A new trial was granted against their objections, and the appeal is taken by them.

We are satisfied that the order was irregular and should be reversed. The defendants had a right either to move or not to move upon the notice which had been given. Neither the plaintiff nor the Court had the power to control them in that respect. Choosing to abandon their proceedings, it was undoubtedly competent for them to do so. The order seems to have been based upon the idea that a motion was actually pending. This was not the case; and even if it were, the defendants had a right to withdraw it. All that had been done, however, was to give the notice and file a statement. The motion was never, in fact, made.

Order reversed.