McWilliams v. Bannister

We hold upon this appeal:

1st. That the respondent’s application for a new trial was a motion: which, with the papers on which it was founded, should have been served upon the appellant. ' And that the appellant should have had the opportunity of presenting affidavits or other evidence against the motion.

2d. That a new trial should be granted to-the respondent, if at all, only upon reasonable terms, including payment of the costs of the former appeal (Mc Williams v. Bannister, 40 Wis., 489), and of this appeal.

3d. That any order for a new trial should limit the trial to the question of payment.

We forbear comment on the merits of the application, as made; as it might tend to prejudice one party or the other, on a new motion, on new papers. For we think that the order should be reversed without prejudice to the right of the respondent to make a proper motion, on proper papers, within proper time.

*306By the Court. — The order of the court below is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.