Shover v. Jones

Elliott, J.

This was a complaint filed by the appellants for a new trial of a cause to revive a judgment, in which a judgment of revival had been entered at a previous term of the court.

The errors assigned .are as follows:

“ 1st. The court erred in finding for, and rendering judgment for, the defendants, when said finding and judgment should have been for the plaintiffs.

“ 2d. The court erred in refusing to grant the plaintiffs a new trial.”

The first error assigned is too indefinite to present any question upon the record to this court. If the finding of the court were not sustained by the evidence, that fact would constitute a proper cause, under the code, for a new trial j *142 and if such, a motion were properly made, and overruled,, an assignment, that the court erred in overruling the motion, would present the question.

J. Perry, G. Holland, and G. G. Binkley, for appellants. G. H. Burchenal, for appellees.

The second assignment of error is proper in form; but the record fails to show that a motion for a new trial was made as required by the statute.

The record, after stating the finding of the court for the defendants, continues thus: “Whereupon the plaintiffs

move the court for a new trial of said cause, but the defendants objected, and the court sustained the objection, and refused to grant a new trial, and rendered judgment for the defendants,” to which the plaintiffs excepted, &c.

The causes for a new trial are stated in section 352 of the code, and section 355 provides, that “the application must be by motion, upon written cause, filed at the time of making the motion.” hTo such written cause appears to have been filed in the case, and hence no question is presented by the second assignment of error.

Judgment affirmed, with costs.