McLain & West v. Densmore & Kyle

By the Court

Lumpkin, J.,

delivering the opinion.

There being no certificate of the Judge to the bill of exceptions in this case, that he charged or refused to charge as complained, the only ground of error left is, that the verdict was against law and contrary to evidence and the weight of evidence.

Had the verdict been for the defendants, instead of the plaintiffs, it would unquestionably have been contrary to law, because strongly and decidedly against the weight of the evidence. Indeed, it would have been without evidence. The proof establishes, conclusively, that the contract for the goods was made with McLain & West; that the ord<# for them was given by them, and not their successors, Miller & West; that they never received the notes of Miller & West as payment, nor agreed to do so, and that McLain & West distinctly acknowledged their liability for the goods.

The omission of the Court to certify that the grounds taken in the motion for a new trial were true, does not prejudice the plaintiffs in error in this ease. The result would have been the same. But it furnishes another fit occasion to remind the bar of the necessity of taking the precaution to obtain the acknowledgment of the presiding Judge that the grounds taken on the motion for a new trial are true. Not that the motion was made upon the grounds stated in the rule, but that the statements in the grounds are true.