To compel vacation of an order setting aside a judgment.

Granted April 19, 1893, with costs.

Case set for trial. Defendant, a non-resident. On the day set, defendant’s- counsel exhibited a telegram from his client stating his inability to be present. No formal motion for a continuance was made, and plaintiff took judgment December 15, 1892. Defendant applied for and was granted twenty days in which to move for a new trial, or sixty days, provided that defendant file a bond for costs within twenty days. The twenty days expix’ed and no motion was made, and no bond given. On February 11, 1893, costs were taxed and an execution issued. On March 8, 1893, a motion for vacation of judgment and a new trial was made and on March 15, 1893, same was granted.

Respondent returns, that at the time that judgment was ren*755dered, he “stated in substance that he should set aside the judgment on terms if application was made,” and counsel for respondent contends that it was understood. between counsel that -the judgment should be set aside on payment of costs. Relator’s counsel cited as to this point, Roche vs. Circuit Judge, 26 M., 370 (748).