Rees v. Blackwell

Ross, J. The appellee brought this action against the appellant upon an account for goods sold and delivered. The appellant filed an answer in two paragraphs. The first being a general denial, and the second a special answer setting up that a part of the goods sold were not such as he contracted for; that they were not delivered at the time agreed upon, by reason of which he could not sell them, and that for these reasons he refused to accept them. There was a trial by jury, which returned a general verdict in favor of the appellee, and also answers to interrogatoi'iessubmitted at the request of the appellant. Judgment was rendered oxx the verdict; a motioxx for a new trial made- and ovexTuled, and 'exception saved. No question is presented as to the sufiiciexxcy of the complaixit. The appellant assigxxs, in this court, the following errors: “First. The Marion Circuit Coux-t ex-red in overruling-the appellant’s motion for a new trial. “ Second. There are other xnanifest axxd manifold ex-rors. in the record and proceedings in said cause, for all of which, axxd oxx accouxit of which, the appellant prays that the judgment, record, axxd proceedings ixx said cause he ixx all things reversed.” The first question discussed by appellant’s counsel, and which he has presented very forcibly, relates to the x-uling of the court ixx refusing to pex-mit appellant to make proof of notice giveix to one Crosslaixd, whom he ixxsists was the ageixt of the appellee in making the sale of the fifty boxes, of lemons, for the value of which this suit was brought.. [508] Without inquiring into the correctness of the ruling of the court, we are compelled to hold against the appellant, for the reason that the question is not saved so as to he presented on this appeal. Where a party complains of the ruling of the trial court, either in the admission or exclusion of evidence offered, he must assign such ruling as a cause for a new trial, designating, with reasonable certainty, the evidence offered, which was admitted or excluded, as the case may be. Cheek v. State, 37 Ind. 533; Wright v. Potter, 38 Ind. 61; Watt, Guar., v. De Haven, 55 Ind. 128; Evans v. State, 67 Ind. 68; Bayless v. Glenn, 72 Ind. 5. There is no reason assigned in the motion for a new trial calling in question any ruling of the court in excluding any evidence offered by appellant. Without such a reason assigned in the motion for a new trial, no question on such ruling is presented to this court for review. It is, also, insisted that the court erred in giving certain instructions. The reason assigned in the motion for a new trial, calling in question the instructions complained of, is as follows: “The court erred in its instructions to the jury in said cause, from number one to number seven inclusive.” This assignment calls in question the correctness of all the instructions from one to seven inclusive, and can be maintained only by showing that all of the instructions are erroneous. Ohio, etc., R. W. Co. v. McCartney, 121 Ind. 385; Williamson v. Brandenberg, 6 Ind. App. 97. It is not insisted that instructions number one, six and seven, were incorrect, and we must assume, inasmuch as no objections have been pointed out, that they state the law correctly. As already stated, the assignment being joint, if any one of the instructions is good, the exception can not be sustained. The sixth reason assigned in the motion for a new trial is as follows : “ The defendant Rees, at the time he was examined as a witness in said cause, was sick and suffering [509] from a severe attack of bilious headache, and was not able, at the time of his examination, because of such sickness, to remember that he had notified the plaintiff, in writing, of the rejection of the lemons in question in said suit, and the cause of such rejection, when, in fact, he had so notified said plaintiff, as shown by the affidavits of said defendants Rees and E. McCormick, which are now filed herewith and made a part of this reason for a new trial herein.” The affidavits referred to in this cause are not a part of the record, not having been made such by bill of exceptions, or order of the court. Jerauld v. Watkins, 1 Ind. App. 466; McDaniel v. Mattingly, 72 Ind. 349; Applegate v. Baxley, 93 Ind. 147; Hodgson v. Board, etc., 97 Ind. 604; McConnell v. Huntington, Admr., 108 Ind. 405. The record does not disclose any application to the coui*t ■for a continuance on account of the sickness of the appellant. It does show, however, that appellant was a witness in his own behalf, and gave his testimony without complaint. Under such circumstances, it is impossible to conceive why the court below should grant a new trial upon a showing, simply that, while on the witness stand testifying, he had forgotten facts which he recalled since the trial. No reason has been pointed out why the court should have granted the motion upon this showing, except counsel for appellant, in his brief, says: “We think the trial court should have granted us a new trial for the reasons assigned in the sixth refson for a new trial. Mr. Rees was compelled to go home on account of sickness during the trial, this the court saw and knew, in addition to our presenting it to him in our sixth reason supported by affidavits.” Such reasoning may appear, and no doubt is, very satisfactory to counsel, but it wholly fails to show to this court any error committed by the court in the trial of the cause. This coiirt can only review and pass upon the ruling of the lower court, and in determining whether or not the ■court erred in overruling the motion for a new trial, we [510] must look to the record to ascertain the rulings upon which the reasons assigned are predicated. The record discloses no ruling upon which the sixth reason assigned, for a new trial could he based. Filed April 13, 1893. ¥e find no error in the record. Judgment affirmed.