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So, if the answer to interrogatories show that instructions refused
could not have changed the verdict, the error committed in the
refusal is cured.- So, if an error has been committed in over-
ruling a demurrer to a bad paragraph of answer^ (})ut not
sustaining one),^ it may be cured by showing that the verdict is
not founded upon it, and if there is an essential omission in the
complaint so that it ^A•ould have been fatal on motion in arrest,
the defect may be cured by a special finding covering the omis-
sion, and showing that proof of it was made.^

§ 2700. Several Findings Inconsistent with General Verdict
on one of Several Paragi-aplis of Complaint. — If the special
findinofs do not cover all the issues, but are not inconsistent with
the general verdict for the plaintiff as to those issues not covered
by them, the defendant is not entitled to a judgment, though
such findings be inconsistent with the general verdict as to the
issues covered by them. This may arise when there are several
paragraphs of the complaint, and the interrogatories are confined
exclusively to one or two of them, and show that the plaintiff is
not entitled to recover thereon. Consequently they are not in-
consistent with the general verdict, on the remaining paragraph,
for the plaintiff. In such a case the findings do not exclude
every conclusion that will authorize a recovery for the plaintiff.**

§ 2701. New Trial. — If the party against whom the special
findings are found thinks they are not supported by the evidence,
he should apply for a new trial, assigning that as a reason.^

1 Baird v. Chicago &c. R. Co., 61 well, 87 lud. 582; Coffcen r. McCord,
Iowa, ao'J; distiuguisliiug Robei'ts v. 83 Iiul. u;i;5.

Corbiu, 28 la. 355. * New v. Walker, 108 Iiid. 3G5.

2 Kuhiisv. Gales, 92 Ind.fifj; Knowl- ^ Sohn r. Camberu, 100 Ind. 302.
ton V. Milwaukee City K. Co., 59 Wis. « Toledo &c. R. Co. v. Milligan, 52
278; Harriuiau r. Queen Ins. Co., 49 Ind. 505; Frazer r. Boss, 66 Ind. 1.
Wis. 71. ' Louisville &c. R. Co. v. Thorap-

3 Burgett V. Teal, 91 Ind. 200; Mc- son, 107 Ind. 442; Murray v. riiillips,
Comas V. Haas, 93 Ind. 271); Terrtdl r. 59 Ind. 56; Blew v. Hoover, 30 lud.
Frazier, 79 Ind. 473; Olds r. Moder- 450.



Tit. VIII, Ch. LXXVII.] special findings. 2043

This motion should apply to the general verdict also ; for if that
is not set aside the motion as to the special Jdudings will be over-
ruled.^ A new trial cannot be claimed on the ground that the
lindings are in conflict with the verdict; ^ but, as we have else-
where seen, the inconsistency can be looked into in order to as-
certain if the jury clearly understood the evidence and instructions
of the court. The motion for a new trial docs not take the
place of a motion for judgment on the findings.^ The granting
of a new trial not only sets aside the general verdict, but the
special findings, although nothing as to the latter has been said
in the motion.^ If the evidence is sufficient to support the gen-
eral verdict, the motion will be overruled, although insufficient as
to the findings standing alone. ^ The refusal of a proper inter-
rogatory must be assigned as a cause for a new trial ; ^ and the
same is true of a refusal to recjuire them to be made specific.'^
If the interrogatories were immaterial, the motion should be
overruled ; ^ and so if covered by another ; ^ or asking for evi-
dence and not facts.^" If it is urged as a cause for a new trial,
that an interrogatory was in an improper form, the motion will
not prevail, if a proper result was reached. ^^ So, if the question
prepared calls only for a conclusion of law.^^ In order to pre-
sent the overruling of a motion for a judgment on the findings,
a motion for that reason for a new trial is not necessary. ^^ Where
the findings were such that it could not be told whether or not
they were antagonistic to the verdict, it was held that a new trial
must be granted.^*

1 Ohio &c. R. Co. V. Selby, 47 lud. » Warden v. Reser, 38 Kan. 86; s. c.
ill. 16 Pac. Rep. GO; Watson v. Milwaukee

2 Byram v. Galbraitli, 75 lud. 134. &c. R. Co., 57 Wis. 332; Hart v. Red

3 Anderson v. Hubble, 93 lud. 570. Cedar, 63 Wis. 634.

4 Fitzpatricli v. Papa, 89 Ind. 17; i" Louisville &c. R. Co. v. Wood, 113
Holleubeck v. Marshaltown, 62 la. 21. Ind. 544; s, c. 14 N. E.Rep. 572.

5 Indianapolis &c. R. Co. v. Stout, '' Wausau Boom Co. v. Plumer, 49
53 lud. 143. Wis. 118.

6 Astley V. Capron, 89 Ind. 167; ^- Chicago &c. R. Co. ■«. Ostrander,
Barnettf. Feary, 101 Ind. 95. 15 N. E. Rep. 227.

7 Astley ?;. Capron, 89 Ind. 167. ^^ Horn v. Eberhart, 17 Ind. 118.

8 Liston V. Central Iowa R. Co., 70 " Fish v. Chicago &c. R. Co. (Iowa),
Iowa, 714; s. c. 29 N. W. Rep. 445. 38 N. W. Rep. 132.



2044 THE VERDICT. [2 Thoiiip. Tr.,

§ 2702. Judgment on Appeal. — If the trial court erred in
overruling the motion for a judgment on the special findings,
the judgment will be reversed with an order to sustain the mo-
tion and render a judgment thereon.^ But if the motion has
been made by the party desiring affirmative relief, the special
findings must cover all the facts necessary for a special verdict. ^
If the special finding shows the verdict to be excessive, and the
amount of the excess, the appellate court may order a remittitur
to be entered, and affirm it as to the remainder.^

1 Smith t?. Zent, 77 lud. 474, 3 sbjnen v. Jones, 44 Ind. 136;

2 Croy V. Louisville &c. R. Co., 97 Shafer ?;. Smith, 63 lud. 22G; Frazer ??.
Ind. 126. See Ne-^vell v. Houlton, 22 Boss, 66 lud. 1; Eogers v. State, 99-
Minn. 19; Phoenix Water Co. v. lud. 218.

Fletcher, 23 Cal. 481; McDermott v.
Higby, 23 Cal. 489.



Tit. IX, Ch. LXXVIIL] in genekal. 2045



TITLE IX. ^

MOTIONS FOR ^EW TRIAL.



Chapter LXXVIII. — Of the Motion in General.
Chapter LXXIX. — Time of Making the Motion.
Chapter LXXX. — Manner of Making the Motion.



CHAPTEE LXXVIII.

OF THE MOTION IN GENERAL.
Section

2707. Preliminary.

2708. The Motion Defined.

2709. How Practice Regnlated Generally.

2710. Office of the Motion.

2711. When Court may Grant a New Trial of its own Motion.

2712. Motion Necessary to Preserve Errors in Record for Review.

2713. Necessity of Motion where Trial is by Court without Jury.

2714. Statutes Dispensing with the Motion.

2715. Not Necessary where Errors appear on Face of Record.

2716. Not Necessary to Save Ruling of Trial Court on Motions.

2717. Necessity of in Criminal Cases.

2718. Who may Make the Motion.

2719. The "Party Aggrieved."

2720. In Cases of Joint Judgment.

2721. Joint Motions.

2722. In Criminal Cases.

2723. In Real and Mixed Actions.

2724. Court in which the Motion should be Made.

2725. Waiver of Right to Make Motion.

2726. Effect of Other Motions.

2727. Number of Motions.

2728. In Real Actions.

2729. Amendment of Motion.

2730. Effect of Filing the Motion.

^ This title was contributed by Eugene McQuilliu, Esq., of the St. Louis bar.



2046 MOTIONS FOR NEW TRIAL. [2 Thomp. Tr.,

§ 2707. Preliminary. — The purpose of this title is to pre-
sent the principles governing motions for a new trial. The
grounds for which new trials are granted and the granting of new
trials are not considered.

§ 2708. The Motion Defined. — Amotion for a new trial
may be detincd to be an application by a party interested in the
action for !in order of court granting a re-trial or re-examination
in the same court of an issue of fact, or some part or portion
thereof, after verdict by a jury, report of referee, or a decision
by the court. ^ It is an application for a re-trial of the facts of a
case,^ or an application for a re-examination of an issue of fact
before a court, or jury, which has been tried at least once
before the same court, '^ or an application for " a rehearing of
the legal rights of the parties, upon disputed facts," * or an ap-
plication for a " re-examination of the issues in the same court," ^
or, in a criminal case, it is an application for a " re-examination of
the issues in the same court before another jury, after a verdict has
been o-iven." ® A motion "to set aside and vacate the verdict
of the jury," upon the ground that the verdict is not sustained
by sufficient evidence, and is contrary to law, and also for alleged
errors of law occurring at the trial, which does not in terms pur-
port to be a motion for a new trial, but which is so treated by
the parties, and the trial court, will be regarded as a motion for
a new trial by the appellate court.''

§ 2709. How the Practice Regulated Generally. — The

origin of the motion for anew trial is of extremely ancient date,
" concealed in the night of time," and consequently involved in

1 Gen. Stat. Nov. (1885), § 321(;; ^ 2 Bouvier's Law Diet. tit. New
Prac. Act, §194; Miller's Auuot. Code, Trials.

Iowa, 1880, § 2837. * Kev. Stat. Mout. (1888), p. 135, §

2 Zaleski v. Clark, 45 Conn. 401. 295; Corap. Laws of Kan. 1885, § 5042;
The general nature and history of Code "of Civ. Froc, § 273.

these motions in Connecticut is fully ^ Miller's Annot. Code, Iowa, 1886,

explained in this case, in a note, p. §4487; Gen. Stat. Nev. (1885), § o2K.

40.-,. ' Hartley v. Chidester, 3G Kan. 363;

3 Hilliard on New Trials, § 1. s. c. 13 I'ac. Kep. 578.



Tit. IX, Ch. LXXVIII.] in GE^'ERAL. 2047

some obscurity.^ In this country the practice pertaining to the
motion is generally regulated by statute, and in each case, the
practitioner will, of course, consult his own local practice act.
But for the most part, these statutory provisions do not super-
sede, or conflict with, but merely explain or affirm the common-
law rules; yet, in some instances, the rights of litigants, and
the power of courts concerning these motions, are very much
limited. The allowance of a motion for a new trial appears to be
incidental to all courts acting upon the principles of the connnon
law,^ and statutory provisions only regulate, they being rather
a limitation upon, than a grant of power to trial courts;-^ yet
some decisions would seem to indicate that a court's prerogative
in this respect emanates wholly from legislative authority.'* In
a' majority of the practice acts of the various States of the
Union, the grounds upon which a motion for a new trial may be
made are expressly enumerated. And usually it is held that trial
courts are conflned to these grounds, although some decisions,
invoking the more liberal principles of the common law, hold that
the statutory grounds are not controlling, but rather that the
whole matter of new trials addresses itself to the sound discretion
of the trial court. ^ Some statutes omit this enumeration, and
merely provide that a new trial may be granted where justice re-
quires it,^ or according to the usages and customs of courts,^ or
"for reasons for which new trials have been usually granted at
common law."^ However, very many of the statutory provis-
ions are identically or substantially the same, and the various
interpretations, while not in perfect accord, will be found not to
differ in many material respects. The motion for a new trial is
governed by the same rules in both criminal and civil cases, **

^ 3 Bl. Com. 387, 388; Hilliard on ^ Nesbit v. Hines, 17 Kan. 316.

New Trials (2d eel.), § 2; 2 Graham ^ Zaleski v. Clark, 45 Conu. 404.

& Waterman on New Trials, 38,39; See § 2711, pos«.

3 Steplien's Com. 025. 6 2 Mich. Ann. Stat. (1882), § 9576.

2 Zaleski v. Clark, 45 Conn. 401, ' Code of Ga. (1882), § 3712.

per Swift, C. J. « p^jj-,, gtat. R. I. 1882, ch. 221, § 3.

3 Bartling v. .Jamison, 44 Mo. 141; ^ Grayson v. Com., 6 Gratt. (Va.)
McNamara v. Minnesota &c. R. Co., 712, 723; Hilliard on New Trials
12 Minn. 388. (2d ed.), p. 114, § 2.



2048 MOTIONS FOR NEW TRIAL. [2 Thomp. Tr.,

but, generally the courts appear more lenient to the accused, in
the former class of cases. Whenever a difference exists it will
be noted in the course of this title.

§ 2710, Office of the Motion. — Amotion for a new trialia
not a collateral motion, but is one directly connected with the
judgment,^ The office of the motion is to direct the mind of the
trial court to the specific errors committed on the trial, ^ in order
to bring such irregularities upon the record,^ which would not
otherwise appear; * as for misconduct of the jury, or of the pre-
vailing party, or of the prosecuting witness, or for errors com-
mitted by the court in admitting or rejecting evidence, or in
giving or refusing instructions,^ or to correct questions of fact or
a wrong verdict,® or to correct a special finding which is against
the evidence.'' The defense that another action is pending be-
tween the same parties, for the same cause of action, cannot be
made for the first time in the motion ; ^ nor can objection to the
jurisdiction of the court in an action against a public officer: ^
nor can any questions not relied upon by answer or otherwise,
and, in relation to which no instructions were asked or exceptions
taken ; ^° nor can a challenge to an array of jurors ; ^^ nor can ob-
jections to the admission of evidence. ^^ A judgment overruling
a demurrer, though erroneous, cannot be made the basis of a
motion for a new trial. ^^ A motion in arrest of judgment cannot
take the place of a motion for a new trial; ^* for the usual office of

^ New York &c. R. Co. v. Doane, ^ Baier v. Berberich, 85 Mo. 50;

105 Iiul. 92. s. c. 13 Mo. App. 587.

2 Rolirer v. Brockhage, 15 Mo. App. " Tullis v. Brawley, 2 Mimi. 277, 287.

16,25; Seifrath v. State, 35 Ark. ^o Gordon ». Pitt, 3 Iov/h, .S85. 390.

412. " Vierling V. Stifel Brewiug Co., 15

" Werner v. State, 44 Ark. 127. Mo. App. 125; Thomp. & Mer. on Jur.,

4 McAllister v. Conn. Mut. Life Ins. §§ 275, 295, 296.

Co., 78 Ky. 531,533. ^^ state v. Peak, 85 Mo. 190; State

fi Evans V. Lohr, 3 111. 511; Higgins v. Blau, 69 Mo. 317; State v. Will-

V. Lee, 16 111. 495. iams, 77 Mo. 310; State v. Burnett, 81

c Stoney v. Wintcrhalter (Pa.), 11 Mo. Il9.

Atl. Rep. 611; Water Imp. Co. v. Gil- " Roger.s v. Rogers (Ga.), 3 South,

der.sk-eve (N. M.), 10 Pac. Rep. 278. East. Rep. 451.

' Dodge V. Pope, 93 lud. 480. See " McClerkin v. State, 20 Fla. 879;

post, § 2712. White v. Caldwell, 17 Mo. App. 691.



Tit. IX, Ch. LXXVIII.] in general. 2049

the former motion is to direct the attention of the trial court to
substantial defects in the indictment, or to errors appearing on
tiie face of the record proper.^ It does not perform the office of
calling the attention of the trial court to rulings which constitute
matters of exceptions; and hence, it cannot reach such irregu-
larities alleged to have occurred on the trial, as are required to
be brought to the notice of the court by proof aliunde,'^ which
object may be accomplished by a motion for a new trial. ^

§ 2711. When Court may Grant a New Trial of its Own
Motion. — As above stated, the object of a motion for a new
trial being to direct the attention of the trial court to specific irreg-
ularities occurring at the trial,'* it may be laid down, as a gen-
eral rule, that, a re-trial will not be granted unless an application
is made therefor by a party to the action ; but there are instances
where a trial court will, upon suggestion of counsel or other-
wise, permit a re-examination of its own motion and in the
absence of a request from either party. This doctrine is
founded upon the principle that it is an inherent power in every
court of general jurisdiction to correct an error Avhich it may
have committed, or which occurred on the trial, to the prejudice
of either party, where no positive rule of law forbids it.^ At
common law courts possessed this power. ^ Accordingly, under
the Missouri practice act, it has been held that a trial court may,
of its own motion, grant a new trial, (1) " where the triers of
fact shall have erred in a matter of law," or (2) " where the

1 Gilstrap v. Felts, 50 Mo. 428; ^ Applications for new trials are not
BurdsaU-. Davies, 58 Mo. 138; Cox v. favored: Berry v. State, 10 Ga. 512. ■
Moss, 53 Mo. 432; State v. Koeruer, 51 * See ante, § 2710.

Mo. 174; State w. Miller, 36 La. Ami. ^ McCabe v. Lewis, 76 Mo. 801.

158; States. Chandler, 36 La. Ann. Co?i<ra, Lloyd v. Briuck, 35 Tex. 1.

177; State v. McGee, 36 La. Ann. 206. « Rex v. Atkinson, 5 T. E. 437, note

2 White V. Caldwell, 17 Mo. App. a; Rex. v. Morris, 2 Burr. 1189; Rex
691; Edgerly v. Emerson, 23 N. H. v. Holt, 5 T. R. 438; Williams v. Cir-
555; s. c. 55 Am. Dec. 207; State v. cuit Court, 5 Mo. 248; State ex rel. i'.
Georsje, Sired. 324; s. c. 49 Am. Dec. Adams, 12 Mo. App. 436, 440; s. c. 84
392; State w. Pete, 39 La. Ann. 1095; Mo. 315; Richmond v. Wardlaw, 36
.<!. c. 3 Southern Rep. 284; State?;. Mil- Mo. 313; Simpson v. Blunt, 42 Mo.
ler, 36 La. Ann. 158. 544.

129



2050



MOTIOXS FOR NEW TRIAL. [2 Tliomp. Tf.,



jury shall be guilty of misbehavior," but for no other reasons.^
In Louisiana it is held that a justice, like all other magistrates,
has the rii2;lit to i»;rant a new trial, either on motion of the
aggrieved party or ex propria motii, where he considers his pre-
vious ruling erroneous.^

§ 2712. Motion Necessary to Preserve Errors in the Record
for Review. — The motion is necessary to enable the court to
correct such errors, occurring at the trial, as do not appear on
the face of the record proper,'^ as where it is insisted that
there is no evidence to support the verdict,^ or that the verdict
is afjainst the law and evidence,^ or that the evidence does not
authorize the judgment,^ or that there is an error in the ver-
dict of the jury,^ or where it is alleged that the court erred in
matter of law, either in admitting or rejecting evidence,^ or in



1 state V. Adams, 84 Mo, 310; re-
versing s. c. 12 Mo. App. 436. The
statute iipoii which tliis practice is
fouuded is as follows : " Only oue new
trial shall be allowed to either party,
except: 1st. Where the triers of fact
shall have erred in a matter of law ;
2ud. When the jury shall be guilty of
misbehavior." Eev. Stat. Mo. 1879,
§ 3705. lu construing this statute,
the court, in the above case, said :
"An error in matter of law is one
which the court ought to liave the
right to correct, at any time -during the
term. For misconduct of the jury the
court ought, also, to have the power
to set aside the verdict, in order to
maintain its own dignity, and to pro-
serve the purity of the administration
of justice. For the causes named in
§ 3705, the court of its own motion,
may set aside tlie verdict. Its com-
mon-law power, in this respect is
not abridged Ijy the statute. On
other grounds than tiiose specilied in
that section, the court cannot, of its
own motion, set aside the verdict."



- State V. McCrea (La.), 3 Southei-n
Rep. 380. As to the power of a court
to set aside a verdict and grant a new
trial of its own motion after the expi-
ration of the statutory time, see
§ 2739.

3 McAllister v. Conn. Mut. L. Ins.
Co., 7(J Ivy. 531, 533; Racer v. Baiier,
113 Ind. 177; s. c. 11 West. Rep. SIC;
Harrington v. Latta (Neb.), 36. N. W.
Rep. 364. See a7ite, § 2710.

* Byrne v. Minneapolis &c. R. Co.,

29 Minn. 200.

5 McCormick v. IMillcr, 19 Minn.
443; Thompson v. Myricli, 24 Minn.
4; Volmer v, Stagerman, 25 Minn. 234.

« Reichwald v. Gaylord, 73 111. 503;
McClurkin v. Ewing, 42 111. 283; Pot-
tle i\ McWorter, 13111. 454; Daniels u.
Shiehls, 38 111. 197; City v. Babcock,
3 Wall. (U. S.) 240; Decker v. House,

30 Kan. 614.

' Bruu I?. Dumay,2Mo. 102; Mont-
gomery u. Blair, 2 IMo. 1!)0.

^ Starner v. State, 61 Ind. 360;
Rousseau v. Corey, 62 Ind. 250; Fow-
ler V. Young, 19 Kan. 150; Racer u.



Tit. IX, Ch. LXXVIII.] IX GENERAL.



2051



giving or refusing instructions,^ or where it is alleged that there
has been misconduct on the part of the jury ,2 or that the dam-
ages assessed are inadequate,-^ or excessive,* or, in a criminal
case, for an alleged error because of the non-arraignment of the
defendant.^ The grounds upon which the motion is to be made
are expressly enumerated in a majority of the practice acts of
the various States, and include generally such errors in the mode
of trial as do not otherwise appear on the record, but which
are proper matters of exception." In each case the practitioner
should consult his own State statute. And when no motion for
a new trial is made in the trial court, to correct such errors, most
of the decisions hold that they are deemed to have been waived,-
aud that the appellate court will refuse to review them.^ In



Baker, 113 lud. 177; s. c. 11 West.
Kep. 816; Bass v. Elliott, 105 lud.
517; Crume v. Wilson, 104 Ind. 583;
Merauda v. Spurliu, 100 lud. 380;
Neff V. Keed, 98 lud. 341.

1 Youug V. Kiug, 33 Ark. 745;
Evans v. Lohr, 3 III. 511; Higsiins v.
Lee, 16 111. 4'J5.

2 Berry v. DeWitt (C. C. U. S. S.
D. N. Y.), 27 Eed. Rep. 723.

3 Mackison v. Clegg, 95 Ind. 373.

4 Single V. First Nat. Bank, 107 Ind.
426, 430.

5 Shoffner v. State, 93 lud. 519;
Billings i\ State, 107 Ind. 54, 57.

6 Bishop V. Ransom, 39 Mo. 417;
Beaucliamp v. Saginaw M. Co., 50
Mich. 163; Stoney v. Wiuterhalter, 11
Atl. Rep. 611.

' McClurkln v. Ewing, 42 111. 283 ;
Daniels v. Shields, 38 111. 197; Pottle
V. McWorter, 13 111. 454; Reichwald v.
Gaylord, 73 111. 503; McGee v. Rob-
bins, 58 lud. 463; Cobb v. Krutz, 40
Ind. 323; McKiuuey v. Shaw &c.
Co., 51 lud. 219; Holesapple v. Faw-
bush, 51 Ind. 494; New York &c. R.
Co. V. Doane, 105 Ind. 92. "A party
has no abstract, inherent right to a
new trial. He has a right because,



and so far only as the statute gives it
to him. It prescribes tlie way to ob-
tain it. If he fails to pursue this
mode he loses the benefit of any errors
on the trial, and is concluded as to all
matters occurring at the trial. " Nes-
bit V. Hines, 17 Kan. 316; Grubler v.
Ryus, 23 Kan. 195; Pratt v. Kelley,
24 Kau. Ill; Wilson v. Kestler, 34
Kan. 61; Buettinger v. Hurley, 34
Kan. 585; City of Atchison v. Byrnes,
22 Kan. 65; Cropsey v. Wiggeuhorn,
3 Neb. 108; Wells v. Preston, 3 Neb.
444; Cruts v. Wray, 19 Neb. 581;
Singleton v. Boyle, 4 Neb. 414; Hora-
cek V. Keebler, 5 Neb. 356; Manning
V. Cuuniugham, 21 Neb. 288; Light w.
Kenuard, 11 Neb. 130; Russell v. State,
13 Neb. 68 ; Stanton County v. Caufleld,
10 Neb. 390; Walrath v. State, 8 Neb.
88; Hosford v. Stone, 6 Neb. 381;
Horbach v. Miller, 4 Neb. 43; Joiner v.
Van Alstyne, 30 N. W. Rep. 944 ; s. c.
20 Neb. 578; State v. Phares, 24 W.
Va. 657; Danks v, Rodeheaver, 26 W.
Va. 274; Riddle v. Core, 21 W. Va.
530; Slirewsburg V. Miller, 10 W. Va.
115; Vineyard v. Matney, 68 Mo. 105;
Wetherall v. Harris, 51 Mo. 65; Kauff-
mau V. Harrington, 23 Mo. App. 573;



2052 MOTIONS FOR NEW TRIAL. [2 Tliomp. Tr.,

New York, where the judgment has been rendered upon the
verdict of the jury, the statute authorizes an appeal from the
judgment upon questions of law only, and the party is precluded
from obtaining a review upon the facts unless he has laid the
foundation for such review by a motion for a new trial. In such
case a motion for a new trial is an indispensable preliminary to
a review upon Cjucstions of fact.^ 80, where facts are not stated
in a special finding, the}' are deemed not proved by the party
having the burden of proof, and the remedy for such imperfect
finding is by motion for a new trial, in order to have the same
reviewed, as the appellate court treats the statement of facts in
the finding as containing all material facts ;'^ likewise, where
facts stated in a special finding are not warranted by proof .^
Some cases hold that a motion is necessary in order to obtain a
review of the decision of a referee, a mere exception to his
report being insuflicient ; * while others hold that, in such case, the
motion is not absolutely essential to the right to a review of the
facts. ^ So, it has been held that the motion is not necessary
where judgment is entered ui)on the award of arbitrators.^ So, in
Missouri, proceedings under the statute of wills is summary, and,
the practice act not applying, no motion for new trial is necessary.^

Exchange Nat. Bank v. Alleti, G8 Mo. ford v. Powell, 101 Ind. 421; Quick v.

474; Hatcher V. Moore, 51 Mo. 115; Bi-euuer, 101 Ind. 230; Indianapolis

Pogue V. State, 13 Mo. 444; Grueu v. &c. R. Co. v. Bush, 101 Ind. 582; Quill

Bamberger, 25 Mo. App. 89 (contra, v. Gullivan, 108 Ind. 235; Glantz v.

Fine u. Rogers, 15 Mo. 315); Hill v. South Bend, 10(5 Ind. 305; Talhort v.

Alexander, 77 Mo. 296. Berkshire Life Ins. Co., 80 Ind. 434;



Online LibrarySeymour D. (Seymour Dwight) ThompsonA treatise on the law of trials in actions civil and criminal (Volume 2) → online text (page 98 of 126)