Skinner v. Ellington

Gamble J., delivered the opinion of the court. Skinner brought a civil action against Ellington, stating in his petition his ground of action in different forms, and claiming different sums of money as one or the other of the alternative statements of facts might be established. The defendant, Ellington, answered, and tbe parties proceeded to trial before the court, each party waiving a trial by jury. The court having heard tbe evidence, made a decision as required by the code of practice ; first stating the facts found, and then the conclusion of law upon the facts, and upon this decision the judgment was rendered in favor of the plaintiff for a less sum than he claimed1. At the trial, instructions in the same form as used in jury trials were asked by each party. All asked by plaintiff were given, and of the defendant’s some were given and others refused. After the decision of the court, a motion was made for a new trial in the form used in our former practice, assigning the usual reasons. Among tbe reasons, are the two, that the finding of the court was contrary to evidence, and that the court had given improper instructions for defendant. There was no case made setting forth the questions of fact or of law, upon which a review was asked with the evidence applicable to such questions as is requi« red by the 3rd section of article 15 of the Practice Act. In this condition of the record, this court can only look to the decision of the court, and if the facts found warrant the conclusion of law pronounced by the court, the judgement rendered thereon must be affirmed. The correctness of the conclusion drawn by the court from the facts is not disputed seriously, and if it were, there is no doubt entertained of its correctness. The code designs in the proceedings to obtain a review, to have the distinct question of fact or of law upon which the review is sought, [490] stated in the application, and then to have a case made in which the evidence material to that question shall be stated. The dangers of mistake in preparing a case, and the difficulties attending the preservation of the questions of law, would seem to recommend the use of a jury in every really disputed case. The judgment is affirmed.