Bode v. Lee

Appeal—New-trial Order—Review of Judgment.—An appeal from an order granting or denying a new trial does not involve a review of the judgment, the correctness of which can be determined only by an appeal therefrom. '

Id.—Motion For New Trial—Independent Record—Reference to Pleadings—Sufficiency of Pleadings Not Involved.—The motion for a new trial, which is in the nature of a distinct proceeding, is to be heard upon an independent record, distinct from the record upon which the judgment depends; and reference may be had to the pleadings in the record for the purpose of ascertaining the issues in the case, and determining the correctness of the rulings of the court as to the relevancy of evidence; but whether the complaint is sufficient to support the judgment, or whether the court erred in overruling a demurrer to the complaint, are matters not involved upon the motion for a new trial, and can be considered only upon an appeal from the judgment.

Id.—Objection Upon Appeal For First Time—Fraudulent Conversion of Goods—Objection to Evidence—Variance.—In an action by the proprietors of a bonded warehouse for the conversion of numerous boxes of tin, which the defendants are alleged to have fraudulently obtained by conspiracy with an employee of the plaintiffs, the fraudulent conversion being alleged to have occurred between two dates a number of years apart, an objection that the plaintiffs were limited at the trial to establishing a single conversion of tin, and could not introduce testimony in support of their complaint showing that the tin for which they sued had been received by the defendants at different times, is in the nature of an objection to evidence on the ground of variance from the allegations of the complaint, and it appearing that the defendants were not misled by the evidence, and failed to raise any objection at the trial, such objection cannot be considered upon appeal for the first time.

Bailment—Warehouse — Embezzlement — Fraudulent Conspiracies — Conversion of Property of Several Bailors—Single Cause of Action—Objection to Evidence.—The proprietors of a bonded warehouse, who are the bailees of boxes of tin left in the warehouse by several different bailors, have a single cause of action to recover for fraudulent conversion of the tin by persons obtaining it through embezzlement by an employee of the warehouse, with whom they had conspired for the purchase of the tin, and it is immaterial to the defendants sued for such conversion whether the plaintiffs were the bailees of one or more bailors; and an objection to the evidence of the entire conversion, upon the ground that the plaintiffs have as many causes of action as there were bailors, and should have stated them separately, is not tenable.

Id:—Statute of Limitations—Admissibility of Evidence—List Made by Defendant—Items Barred.—Where one of the defendants, in connection with his testimony, presented a statement, or list of items, from the books of the defendants, which had been prepared at the instance of the witness, and was produced by him for the purpose of showing the nature of the transactions between the defendants and the employee of the plaintiff, the list produced is not rendered inadmissible by reason of its containing entries of transactions that had occurred more than three years before the commencement of the action; and an objection on the part of the defendants to that portion of the list, upon the ground that no recovery could be had for it, and that it is barred by the statute of limitations, is properly overruled.