Gray v. Godfrey

Harrison, J. Defendant in error instituted this action to recover of plaintiff in error the sum of $52.91 and interest due thereon, balance due on account. Plaintiff in errror, in his answer, acknowledged the purchase of the articles and to the amount charged in the account, and that the charges were reasonable, but pleaded payment of a portion of the account, claiming that the true balance he owed defendant in error at the time of the commencement of the action was $23.10, of which sum he also alleged a tender. The reply was a general denial of each and every allegation of the answer. A jury was waived and trial had to the court, which resulted in a finding and judgment in favor of defendant in error for the sum claimed in his petition. Motion for new trial was filed and overruled and the case is presented here for review. It is first assigned for error that the judgment was not [673] ■sustained by sufficient evidence. We have carefully examined and considered the evidence, and while, as to a number of questions, it is conflicting, we cannot say that the finding and judgment of the trial court, based thereon, ■are clearly or manifestly wrong; and as a whole we think it may be said to be amply sufficient to sustain such findings and judgment; hence, following the settled rule of this court, they will not be disturbed. There is a further assignment that the court erred in not granting a new trial because of “newly discovered evidence material to the defendant as shown by the affidavits of James H. Cradduek and William Gray and K. K. Hayden submitted herewith.” It is well established in this court, by a long line of decisions, that testimony of any kind used in a lower court, to be available in this court for •any purpose, must be preserved by a bill of exceptions, and this applies with as much force to evidence in the form of ■affidavits as any other. The affidavits used in this case at the hearing of the motion for a new trial, to support the ground thereof, which is made the basis of the assignment •of error now under consideration, were not preserved by •the bill of exceptions and therefore cannot be considered here. The judgment of the district court is Affirmed.