This is an appeal from an order of the district court denying a new trial. The proceeding was instituted by petition and summons under the provisions of section 318 of the civil code. Appellant has filed no brief and the cause is submitted upon the brief of appellee.

A number of questions are discussed, but we think it necessary to notice but one, as it is decisive of the case.

It appears from the record that after the original judgment was rendered the appellant filed with the clerk of the district court a request for a stay of execution, and execution was thereupon stayed. The stay was taken by appellant's attorney, with full power to act, as shown by the proof.

This, by the holding of this court in Miller v. Myers, 11 Neb., 474, is a waiver of the right of a defendant to attack the stayed judgment in any manner.

The judgment of the district court in refusing the new trial is therefore affirmed.

Judgment affirmed.