Sarver v. Garcia

By the Court, McKinstry, J.: The judgment was for plaintiff, and the Court below granted a new trial on the ground that the evidence was insufficient to justify the findings.

Appellant (plaintiff in the Court below), argues that the District Court erred for the reasons: First, that the bill of exceptions was not signed or certified by the referee or Judge; second, that the objections do not specify the particulars in which the evidence was insufficient.

1. The signature or certificate of the referee or Judge was waived by stipulation.

2. The exceptions do specify the particulars in which the evidence was claimed to be insufficient.

Order affirmed.

Wallace, C. J., concurring. I concur in the order of affirmance and in the opinion of Mr. Justice McKinstry. The motion was submitted on an agreed statement of facts, containing sufficient specifications of the points relied upon for a new trial. To this agreed statement was annexed a fourth stipulation of counsel “that a motion for a new trial may be heard thereon.” The motion for a new trial was accordingly heard and determined, and it is too late for the losing party to suggest for the first time in this Court that the order should be re[220]versed for want of a bill of exceptions filed in support of the. motion.

Mr. Justice Rhodes did not express an opinion.