Nathaniel Harmison, plaintiff in error v. Reuben Clark, Jacob Clark, Senr., and Lucy Clark, his wife, and Jacob Clark, Jr., defendants in error, 1 Scam. 131

Wilson, Chief Justice, delivered the opinion of the Court: In this cause two trials were had in the Court below. Upon the first trial, judgment was rendered in favor of two of the defendants, and judgment by default was taken against Jacob Clark, sen. and Lucy his wife, two other defendants. At the same term, the Court, upon the application of Jacob Clark, sen., set aside the default against him and his wife, and granted a new trial as to all of the defendants.

During the progress of the first trial, several exceptions were taken by the plaintiff to the opinion of the Court, but these exceptions are not now available. To have enabled him to avail himself of them, he should have renewed them on the last trial (if the same ground of exception again occurred,) as that was a trial de novo, and the judgment rendered on that trial is the only final judgment in the cause. Upon the second trial, a verdict and judgment were rendered in favor of all the defendants.

From this statement of the case, the only assignment of error that can be noticed by the Court, is that which questions the correctness of the order of the Court below, setting aside the default of two of the defendants, and granting a new trial, as to all of them. It has been repeatedly decided, that an application to set aside a judgment by default, or to grant a new trial, is addressed to the discretion of the Court, and that the decision of the Court upon such application, cannot therefore be assigned for error.

It is however contended that this case is not within this general rule, because a new trial was ordered as to two of the defendants who were acquitted, and who did not join in the application made by the others for that purpose. This position might well be assumed by those defendants who were acquitted on the first trial, had they afterwards been convicted; because the effect of the order was to impose upon them the costs of another trial, and to subject them to another chance of conviction.

But the same reason that would, under this state of the case, authorize them to assign this decision of the Court for error, precludes the plaintiff from doing so. The decision was to his advantage, by multiplying his chances of success. He therefore has no reason to complain, and cannot assign that for error which was for his benefit. The judgment must be affirmed with costs. Judgment affirmed. See note to last case.