Jacks v. Buell
Synopsis
Questions on Motion fob New Tbial.—Questions respecting the sufficiency of the complaint cannot be presented upon a motion for a new trial, nor considered on an appeal from an order denying a new trial.
Affidavit fob Continuance.—An affidavit stating, that four days prior thereto, the party had placed a subpena for absent witnesses in the Sheriff’s hands, and that the Sheriff had not been able to find tliem, does not show sufficient diligence to obtain a continuance.
Review of Obdeb Denying Continuance.—A denial of a motion for a continuance cannot be reviewed, except on a bill of exceptions.
By the Court: Upon a motion for a new trial, questions respecting the sufficiency of the complaint cannot be presented, for they are not comprehended in the statutory grounds of the motion; and where an appeal is taken, as here, from the order refusing a new trial, and not from the judgment, those questions cannot be considered by this Court.
The affidavit for a continuance did not show due diligence on the part of the defendant in procuring the attendance of the absent witnesses. But were the affidavit suffi[164]cient in this respect, the action of the Court in denying the motion could not be reviewed, because it is not presented by a bill of exceptions. The affidavits are clearly insufficient to entitle the defendant to a. new trial, on the ground of newly-discovered evidence.
Order affirmed.
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