Heavey v. Laden

MR. JUSTICE HOLLOWAY delivered the opinion of the court. This action was brought to recover upon five separate causes of action. The defendant recovered a general verdict, but upon plaintiff’s motion a new trial was granted, and this appeal is from that order. Appellant concedes that plaintiff was entitled to a new trial [1] of her second and third causes of action, but insists that a new trial of the entire case is not warranted. This court is bound by the record as it is presented, and counsel for appel [422] lant cannot insist that we consider remarks made or theories exploited in the lower court, which do not appear in the record. One ground of the motion was insufficiency of the evidence [2] to justify the verdict. The order granting the motion is general in its terms. The evidence touching the first, fourth and fifth causes of action is in sharp conflict. Upon the authority of Reynolds v. Jones, 53 Mont. 251, 163 Pac. 469, and Fadden v. Butte Miners’ Union, 50 Mont. 104, 147 Pac. 620, the order is affirmed. ’Affirmed,. Mr. Justice Sanner concurs. Mr. Chief Justice Brantly, being absent, did not hear the argument and takes no part in the foregoing decision.