Jacks v. Buell

By the Court: Upon a motion for a new trial, questions respecting the sufficiency of the complaint cannot be presented, for they are not comprehended in the statutory grounds of the motion; and where an appeal is taken, as here, from the order refusing a new trial, and not from the judgment, those questions cannot be considered by this Court. The affidavit for a continuance did not show due diligence on the part of the defendant in procuring the attendance of the absent witnesses. But were the affidavit suffi [164] cient in this respect, the action of the Court in denying the motion could not be reviewed, because it is not presented by a bill of exceptions. The affidavits are clearly insufficient to entitle the defendant to a. new trial, on the ground of newly-discovered evidence. Order affirmed.