¶1This was an action by Allen Make-peace, against the appellants and others, to foreclose a mortgage. Judgment of foreclosure was rendered, in favor of the plaintiff", at the July term of the court of common pleas, in the year 1870.
¶2Afterwards, at the July term of said court, in the year 187.1, some of the defendants in the original action appeared in that court and showed that they had paid the costs in that action, and moved that a new trial he granted to them, as a matter of right, under the provisions of section 601 of the code. 2 R. S. 1876, p. 252. No order is contained in the record, as sent up to us, granting the above motion, but the record shows, inferentially, that the motion was granted and a new trial ordered.
¶3At the November term of the court, in the year 1871, the death of Makepeace was suggested, and John E. Cor-*22win, his administrator, appeared specially and moved the court to set aside and vacate the previous order of the court, granting a new trial. This motion was sustained, and the previous order, granting a new trial, was set aside, vacated and annulled.
¶4Two of the original defendants, only, have appealed and assigned error, and the appellee has pleaded the statute of limitations to the appeal.
¶5The record was filed in this court March 16th, 1874, more than three years after the original judgment was rendered, but less than three years after the order of the court, setting aside the previous order granting a new trial.
¶6By statute, appeals must be taken within three years from the time the judgment is rendered, except where the .appellant is under disabilities. 2 R. S. 1876, p. 243, sec. 561. Here, the appellants do not appear to have been under any disabilities. "We are of opinion that the three years commenced running from the time the original judgment was rendered, and not from the time when the order granting a new trial was set aside.
¶7The order granting a new trial was no part of the original case, and, indeed, it seems to us to have been a nullity. The case was not one in which the parties were entitled to a new trial, on payment of costs, as a matter of right, under the statute. When the original judgment was rendered, and the term of the court had passed, the parties were out of court; and no motion to set aside the judgment and grant a new trial 'could have been entertained, without notice to the opposite party. The order granting a new trial was made, apparently, without notice to the plaintifi' in the original action; and, if so, it was not erroneous, merely, but utterly void. If the order granting a new trial should be regarded as erroneous, merely, and not void, still the subsequent action of the court in vacating and setting it aside, left the original judgment standing as if no such order granting a new *23trial had been made. In any view of the case, we think the appeal should have been taken within three years from the rendition of the original judgment.
¶8The appeal is dismissed, with costs.