Webb v. Stephens

¶1dissenting. In this ease, the judge directed a verdict against the illegality. Subsequently, the defendant in fi. fa. made a motion for new trial, which was overruled, and on' that judgment error is assigned in the bill of exceptions. The MU of exceptions does not contain any assignment of error on the direction of the verdict. The only assignment of error on such direction is contained in a special ground of the motion for new trial as follows: “That the court erred in directing a verdict in said case finding against the illegality, and in entering up judgment in accordance with said verdict.” Under the ruling in Mullis v. McCook, cited in the majority opinion (supra), in the instant case, the above-quoted assignment of error would have been sufficient to raise the question whether the evidence demanded the finding so directed, if the assignment of error had been in the MU of exceptions. Here, however, it was contained only in a special ground of the motion for new trial; and, under numerous and repeated rulings of the Supreme Court, a special ground of a motion for new trial must be co'mplete and understandable within itself, and will not be considered by the reviewing court where the court, in order to ascertain whether the alleged error has been committed, must refer to the brief of the evidence or to some other part of the record. In the case at bar, this court can not intelligently pass upon the assignment of error (made solely in the special ground of the motion for new trial), without referring to the brief of the evidence. It follows that the special ground of the motion should not be considered by this court; and the only question for our determination is whether the court erred in overruling the general grounds of the motion; and, to that question, an answer in the' negative should be returned. Moreover, the assignment of error on the direction of the verdict fails to allege there was an issue of fact which should have been submitted to the jury, fails to allege that the verdict directed was not demanded by the evidence, and fails to allege that a different verdict would have been authorized by the evidence. This being true, under almost countless decisions of the Supreme Court and the Court of Appeals, the assignment of error is insufficient to raise the question whether the directed verdict was demanded by the evidence. I think that the judgment should be affirmed.