¶1delivered the resolution of the court, That the district court did not err in refusing to permit the account to go to the jury ; but that, as the verdict did not find the point put in issue between the parties, namely, Whether the testator (and not the appellants, as stated in the order book), assumed, the verdict ought to have been set aside, and a new trial awarded. That the error could not be corrected at a subsequent term of the court ; and consequently, that the order made by the district court for amending the record, at another term, was not authorized by law. That therefore the judgment was to be reversed, and a new trial awarded.
¶2*The entry was as follows :
¶3“The court is of opinion, that the district court did not err in refusing to permit the account stated, in the bill of exceptions filed in this cause, to have been offered by the appellees as evidence for them, to go to the jury ; but that, as the jury did not try or find the fact put in issue by the parties in this cause, (which was the assumpsit of John S. Field, the testator of the appellants themselves, as found by the jury), there is error in the judgment of the district court, in not setting aside the verdict, and awarding a new trial of the issue : And this court is further of opinion, that the order made for amending the record, and altering the judgment entered on the said verdict, at another and subsequent term after the verdict was given, and judgment entered thereon fully drawn up, read and signed by the judge in open court, is erroneous, the said amendment, after the term, not being authorized by law. Therefore it is considered, that the said judgment be reversed and annulled, and that the said surviving appellant recover against the appellees the costs expended in the prosecution of the appeal aforesaid here. And it is ordered, that the said verdict, and the order for amending the record, be set aside, and that a new trial be had in the cause.”