¶1The facts as established by the petition and answer were:
¶21. That on April 22, 1896, the relator was sued by one Ethan H. Beach in justice’s court upon a promissory note; that the plaintiff declared upon said note; that relator pleaded verbally the general issue, with notice of set off and of recoupment; that at the trial of the case, after the plaintiff had introduced the note in evidence and rested his case, the relator undertook to prove a novation; that said evidence being objected to for want of .a proper notice, the defendant was permitted to amend his plea by giving such notice; that the trial was then proceeded with, and resulted in a verdict and judgment of no cause of aetion.
¶32. That on August 10, 1896, the motion of the plaintiff for leave to appeal from said judgment to the circuit court for the county of Livingston was argued before the respondent; that said motion was made under How. Stat. § 7005, as amended by Act No. 73, Laws of 1891, and was based upon the affidavit of Louis E. Howlett, a copy of which is attached to relator’s petition.
¶4That upon the hearing of said motion the relator’s attorney filed his own affidavit in opposition to said motion, in which it was averred, among other things, upon information and belief, that the plaintiff’s attorney was employed in said cause by plaintiff’s wife, who during the time the ease was being carried on resided near the village of Howell, in tho county of Livingston, and was in constant communication with plaintiff’s attorney; that it appearing to the respondent that owing to the plaintiff’s non-residence it was impossible to' communicate to him the result of the trial, and receive an intelligent reply within the five days allowed for appeal, an order was made permitting the appeal set forth in relator’s petition.
¶53. That a motion made by the plaintiff to vacate said order permitting an appeal was denied by the respondent.