Davis v. Bolton

Per Curiam. The appellants, who were the plaintiffs, brought this action against the appellees upon a replevin bond. Issues being made, the cause was submitted to the Court, who found for the plaintiffs. Motion for a new trial denied, and judgment. The plaintiffs appeal to this Court. The only ground for a reversal, assumed in the plaintiffs’ brief, is the insufficiency of the evidence to sustain the finding. There is a bill of exceptions which, after setting forth certain written and oral testimony given on the trial, concludes thus: “ And this was all the evidence offered in the case.” The appellee refers to rule 30 of this Court, and contends that under it the averment in the bill is not sufficient to show that the record contains all the evidence. This position is, in our opinion, well taken. The following is the rule: “ In every bill of exceptions purporting to set out .the evidence, on motion for a new trial overruled, the words, ‘ this was all the evidence given in the cause] are to be regarded as technical, and indispensable to repel the presumption of other evidence.” But there is another reason why we are not allowed to examine the evidence. The record fails to show that the alleged causes for a new trial were in writing. 2 B. S., § 355, p. 119. The judgment is affirmed, with 10 per cent, damages and costs.