¶1 The order at Fall Term, 1870, re-referring the report to be re-formed in certain particulars, and when so reformed, to be the judgment of the court, is irregular and contrary to the course and practice of the court, in that it deprives the parties of the right to except to the report as reformed, and puts the referee in the place of the court to render judgment.
¶2 It was proper for his Honor, at a subsequent term, to set aside this irregular judgment, independent of the C. C. P.,. sec. 133. It is always in order as long as a case is pending,, to set aside an irregular order. Bat if that were not so, still it might be considered under that section of C. C. P., sec. 133, which allows a judgment, &c., to be vacated at any time within twelve months on account of “ mistake, surprise or excusable neglect ;” for the motion being entered as of Fall Term, 1871, it is an apt time, and the order being made at midnight, when the plaintiff was absent, and did not know, and had no reason to believe that the court was in session, and his counsel not being able to attend to the case, make a case of “ excusable neglect.”
¶3 It is not intended to reflect upon his Honor for holding his court at midnight. On the contrary, he is commended for his. industry in endeavoring to dispose of all the business before adjournment. And it has always been the custom to do a considerable portion of the business upon the equity docket. *270 fin tbe night, and often late at night in the Judge’s room, with •-only the lawyers present.
¶4 There is no error in the order appealed from. Let this be certified.
¶5 Pee C rati am. Judgment accordingly.