Merriweather v. Erwin

Bennett, J. The appellee sued the appellant, in the Chicot Circuit Court, in assumpsit, and the appellant pleaded the general issue, payment and set-off. Issues, upon these pleas, were made up and a trial had, and verdict for the appellee. Merriweather appealed. The hill of exceptions does not show that there was amotion for a new trial filed in the cause below. In the manuscript, there is what purports to he a motion for a new trial, marked filed-on the 23d day of October, 18G9, hut not signed by the clerk. After the cause was sent to this court, counsel for appellant and appellee, on the 27th of October 1870, filed an agreement in words, as follows : “It is hereby agreed, between the counsel of said parties, that the motion for a new trial, which was filed and marked filed on the 23d of October, 1869, was not noted of record or acted on ; is, in fact, no part of the record on appeal, and is not to be regarded as such. [Signed.] Street & Pike, (Iounsel for Merriweather. Garland & Nash, For Erwin.” It lias been decided by this court, at its last term, in the ease of Stack vs. Mahar, 26 Ark., 537 : “That on an issue and trial of fact, by a jury, or the court, a motion for a new trial is essential to correct the errors, growing out of the evidence. or instructions, before an appeal can be entertained by this court. When the error complained of does not relate to errors growing out of the evidence or instructions, but such as are apparent from the record, without the intervention of a bill of exceptions, there is no necessity for making a motion for a new trial, and the cause, in such case, can be brought to this court without making the motion; but in. eases where the error complained of does not appear of record, save by the intervention of a bill of exceptions, a motion for a now trial must be made before an appeal will lie to this court.” The case before us is one, where not only the facts, but the declarations of law are questioned, and very clearly comes under the ruling of the case above cited. Wherefore, when the counsel for the appellant, agreed that no motion for anew trial was made in the court below, they admitted their case away; The language of the Code (see. 886) is: “A judgment or final order shall not bo reversed for an error which can be corrected ou motion in the inferior courts, until such motion has been made there and overruled.” No effort having been made to correct the errors complained of, in this case, in the court where they originated, wo must sustain the former riding of this court. Let the judgment be affirmed.