Jones v. Armeling

Kimball, Justice. This is a proceeding in error to review a judgment rendered on the verdict of a jury against the plaintiff in error, the defendant below. The errors alleged are such as could have been properly assigned as grounds for a new trial, and the motion for a new trial is not embraced in the bill of exceptions. The proceeding, therefore, under our rule, presents nothing that will be considered by this court. Sup. Ct. Rule 13, 29 Wyo. 552; Rubel v. Willey, 5 Wyo. 427, 40 Pac. 761. The bill of exceptions recites that plaintiff in error’s motion for a new trial was denied, and that he excepted to the ruling, but this is not sufficient to make the motion a part of the record. Seng v. State, 20 Wyo. 222; 122 Pac. 631; Chatterton v. Bonelli, 27 Wyo. 301; 196 Pac. 316. The petition in error alleges that the trial court erred in overruling the plaintiff in error’s motion, made after both sides had rested, to dismiss the case for the reason that the petition did not state facts sufficient to constitute a cause of action and that the evidence disclosed defects in parties plaintiff or defendant. This assignment, like the others to which we deem it unnecessary to make particular reference, is one that should have been made a ground of a motion for a new trial. Burns v. Railway Co., 14 Wyo. 498, 85 Pac. 379. The petition in error does not otherwise challenge the [26] sufficiency of the plaintiff’s petition to support the judgment. The case was submitted both on a motion to dismiss the proceeding in error and on the merits. We do not rule on the motion. The fact that the motion for a new trial is not embraced in the bill of exception was not made a ground of the motion to dismiss nor called to our attention by the briefs of counsel. It is clear, however, that when the defect comes to our notice in any manner we must enforce the rule unless there appears some reason for its suspension. Rubel v. Willey, and Chatterton v. Bonelli, supra. The judgment of the district court will be affirmed. Affirmed. Potter, Ch. J., and Blume, J., concur. NOTE — See 3 C. J. p. 980; 4 C. J. pp. 93, 94, 503.