¶1— The motion for leave to plead the canceling of the judgment is not the same application which had been heard and decided before. The order of July 28, 1881, canceling the record, made a substantial change in the position of the parties to the action. The effect of that order was to remove from the record the judgment upon which this action was brought.
¶2The defendant was entitled upon proper terms to set up the discharge which this court had ordered, pursuant to the imperative direction of the Code.
¶3The court has no power to refuse to carry out the intention of the legislature in that regard. The order should have been made granting the leave asked on payment by defendant of all the costs of the suit, and upon the stipulation to the discontinuance of the action, without costs, if plaintiff desire.
¶4Order reversed, with ten dollars costs and disbursements of appeal.
¶5Yah Hoeseh, J., concurs.