McCartney v. Henry

Baldwin, J. delivered the opinion of the Court Cope, J. concurring.

We do not see any settled or agreed statement in this case, on motion for a new trial or on appeal. There appears the signature of a Judge of the District Court, but no certificate of the correctness of the statement preceding, which does not purport to -be a statement on motion for a new trial; nor do we see any order disposing of the motion for a new trial. The grounds of the motion for a new trial were not filed within the time required by law. The appeal here, then, must be from the judgment. This was rendered by the Court, sitting without a jury. Ho statement on appeal appears in the record; but if we are' to consider this statement as a statement on appeal, we can only consider the errors of law to which exception was regularly taken. The Court finds that the defendant, Fitz Henry, was the owner and in possession of the property. Whether the Court was warranted by the evidence in so finding, we cannot determine, as on appeal we cannot review the finding on the facts. This disposes of the two first assignments of the appellant.

Two other assignments remain.

[1861]. That the Court erred in admitting Treadway’s deed to Fitz Henry.

2. That the plaintiff offered, and was not permitted to show, that at the time Sherwood and wife executed the mortgage to plaintiff, Tread-way represented to him that he had no title to the premises mortgaged, and this was known to Fitz Henry.

Prima facie, on the theory upon which the plaintiff proceeded in the conduct of the cause, the deed of Treadway to Fitz Henry was evidence, the question of the identity and description of the premises being a matter of subsequent proof.

The last assignment is answered by the suggestion, that if this matter were important, the plaintiff took no exception to the ruling of the Court at the time; and it is too late now to take it on appeal.

We see no error in the record wliich would justify a reversal of the judgment.

Judgment affirmed.