DeBarry-Baya Merchants' Line v. Austin

-Jackson, Chief Justice. At the first term of the court, on return of the writ, the ’defendant demurred, and on the demurrer being overruled at that term, he then filed an interlocutory bill of exceptions pendente lite. At Jhe .next term, the case was tried and verdict returned for the plaintiff. Thereupon, defendant brought- his writ of .error ■ here, assigning as error the judgment at the first term overruling his demurrer then, and alleging that he then filed the ■ interlocutory bill of -exceptions. It is also alleged that he made a motion for a mew trial, on the sole ground that the court overruled the demurrer at the last term, and that he then filed the pendente lite bill of exceptions, and assigns error on the denial of the motion for a new trial on that ground. .No other assignment of error is made in respect to anything that transpired at the trial term, either as a ground in’.the motion for a new trial or otherwise. 1. It is no ground for a motion for a new trial that a demurrer was overruled and the case not dismissed. It is .folly to move for a new trial before a jury on a ground that the court passes on before any jury was had and that the jury has nothing to do with; and it is equally inexplicable that a motion which, if successful, would take the case [308] away forever from the jury, out of court, could be a ground to try again before a jury- There was no error, therefore, to overrule the motion. 2. There being, therefore, no assignment of error on the motion for new trial but this one ground, which occurred six months before, and was then excepted to pendente lite, and which is not ground for new trial by jury, this court has no jurisdiction to try the case, because the point and only point of error assigned is here six months after the time allowed by law; and no error is assigned upon anything which occurred at the trial term, except as part of a motion of which it could not be a part. Therefore the writ of error is dismissed and the judgment affirmed. There must be some legal assignment of error on what transpired on the trial term in order to bring here and assign error upon pendente lite exceptions at a previous term. Writ of error dismissed.