#### Frederick Aholtz v. James F. Durfee.

Ejectment — Neiv Trial — Delay in Paying Costs — Insufficient Excuse.

Upon petition for the vacation of the judgment and for a new trial in an action of ejectment, it is held that a failure to pay the costs for more than a year after the close of the term at which the judgment was rendered is not sufficiently excused by an allegation that the clerk had not computed the amount thereof because of the absence of the files in the hands of some unknown person, it not appearing that the petitioner had used due diligence.

[Opinion filed August 26, 1886.]

Appeal from the Circuit Court of Macon County; the Hon. C. B. Smith, Judge, presiding.

Mr. H. Pasco, for appellant.

Inasmuch as the statute allows a new trial as a matter of right within a year from the rendition of the judgment, and that in the discretion of the court another new trial might be had within a year from the rendition of the second judgment,, the court may grant a trial at any time within two years from the rendition of the first judgment. A failure to pay the costs *145within a year from the rendition of the first judgment is not a bar to a new trial, provided the costs are paid and petition for a new trial filed and motion entered after the expiration of one year, and within two years from the date of the rendition of the first judgment. Riggs v. Savage, 2 Gil. 400; Chamberlin v. McCarty, 63 Ill. 262; Myers v. Phillips, 68 Ill. 269; Shackleford v. Bailey, 35 Ill. 387; Stoltz v. Drury, 74 Ill. 107; Rountree v. Talbot, 89 Ill. 246.

Messrs. Outten & Vail, for appellee.

A party, where there is a judgment in ejectment against him, can not make a motion under the statute for a new trial during the year, and then after the year is up wait indefinitely to pay the costs, say six months, one year, or two years, at his pleasure, and then re-try the case. Pugh v. Reat, 107 Ill. 440; Oetgen v. Ross, 36 Ill. 335.

Wall, J.

At the May term, 1881, of the Macon- Circuit Court, the defendant in error recovered a judgment in ejectment against the plaintiff in error for a lot in the city of Decatur.

On motion of plaintiff in error entered at the same term,, a new trial was granted under the statute upon payment of costs to be made within three months.

The costs were not paid until December 2,1882 — more than, a year after the close of the term at which the judgment was rendered. Application was made to the Circuit Court at the February term, 1883, based upon this payment, for an order vacating the judgment of the May term, 1881, and for a new trial of the case, which was denied, and the record having been brought here by writ of error we are asked to review this ruling of the Circuit Court.

In the sworn petition filed with the application it was alleged; as-an excuse for not sooner paying the costs that the clerk had not until that day computed the amount thereof, and that' until so computed the plaintiff in error did not know how much it was, and hence could not pay the costs because he did not know the amount.” Coupled with this is a statement that, as he believes, the papers in the case were taken out of the-*146clerk’s office about the time of the trial by some unknown person, and because of the absence of the files the clerk could not make up the fee bill and let him know the amount so he could pay, etc.

This statement is quite indefinite. It does not appear how long the papers' were absent, nor does it anywhere appear that plaintiff in error ever requested the clerk within the proper time to make up the fee bill, or that if he had done so the clerk could not have obtained the papers or make the necessary computation. Had such an effort been made and the payment of costs prevented, and thereby the rights of the plaintiff in error unduly prejudiced, a different case would exist. But, conceding that in such a case relief could be granted in the way here ado¡Dted, we are of opinion the petition did not disclose necessary diligence on the part of plaintiff in error, and for that reason," if for no other, the application was properly denied.

Affirmed..