Opinion
No. 5829
Opinion Filed February 8, 1916.
1. APPEAL AND ERROR — Record — Case-Made — Questions Presented. Where the case-made on appeal does not contain a recital that it contains all the evidence presented at the trial, and the errors assigned occurred at the trial and require an examination of the evidence, such errors cannot be considered by this court.
2. SAME — Motion for New Trial. Where the record falls to disclose that a motion for new trial was filed in the court below, and the errors assigned occurred at the trial, this court will not review such alleged errors.
(Syllabus by Rummons, C.)
Error from District Court, Washington County; R.H. Hudson, Judge.
Action by A. McCann and others against L.J. Rees. Judgment for defendant, and plaintiffs bring error. Affirmed.
Key Cunningham, for plaintiffs in error.
H.H. Montgomery, for defendant in error.
From a judgment of the district court of Washington county for the defendant in error, hereinafter called the defendant, the plaintiffs in error, hereinafter called the plaintiffs, bring this proceeding in error. Plaintiffs make the following assignments of error in their brief: That the trial court erred in overruling the plaintiffs' motion for a new trial; that the court erred in rendering judgment contrary to the law and contrary to the evidence; that the court erred in its special findings of fact; and that the court erred in rendering judgment. Counsel for defendant urge that the judgment be affirmed for the reason that there is no recital in the case-made that the same contains all the evidence, and for the further reason that the case-made does not contain any motion for new trial. The recital attached to the case-made is as follows:
"The above and foregoing case-made contains a full, true, and correct copy of all pleadings, motions, demurrers, and rulings of the court thereon, all agreements, exhibits, orders, journal entries, judgments, rulings, decisions, and all proceedings had and done in said cause. And these are all the processes, pleadings, motions, proceedings, agreements, exhibits, decisions, rulings, orders, judgments, and all proceedings had and done in said cause, and the same constitute a full, true, and complete record of said cause."
It would seem from the foregoing recital that counsel for plaintiffs had studiously avoided all reference to the evidence, inasmuch as the recital shows that the case-made contains everything else that could occur upon the trial of a cause.
The journal entry recites:
"And thereupon the plaintiffs filed motion for new trial, and the same is overruled, to the overruling of which plaintiffs except."
But the case-made does not contain any motion for a new trial, and we are unable to determine whether the errors complained of by plaintiffs were called to the attention of the trial court. The brief of defendant has been on file in this court for more than a year, and no application has been made by plaintiffs to amend or correct the case-made. As all the assignments of error relied upon by plaintiffs require a review of the evidence and of the proceedings at the trial, in the absence of a motion for new trial and a recital that the case-made contains all the evidence, we are precluded from examining the errors assigned.
The judgment of the trial court should therefore be affirmed.
By the Court: It is so ordered.