Mosley v. Mosley

Opinion bv

Judge Lindsay:

The motion for a new trial of this action was based upon three grounds.

1. That the verdict was contrary to the evidence.

2. That it was contrary to law, and

3. That the court erred in giving to the jury instructions Nos. 5 and 6, asked by appellee.

As to the first ground, it is sufficient to- say that the verdict is not so flagrantly against the weight of the evidence as to authorize the interposition of this court.

The 2nd and 3rd grounds must be considered together. Appellant does not complain that any proper instructions asked by himself were refused. The bill of exceptions does not show instructions given upon motion of appellee. It does state that he moved the court to give the jury instructions Nos. 1, 2, 3, 4, 5 and 6, all of which except No. 3 were given; that the plaintiff objected to Nos. 1, 5 ánd 6; that his objections were overruled, but these instructions are not embodied in the bill. '

Following the signature of the circuit judge, are copied certain papers purporting to be instructions, but we have no legal means by which t» determine whether or not these are the instructions that were given in this case at the instance of the appellees. The bill of exceptions must show all the instructions given, otherwise this court cannot review the action' of the court below in giving and refusing instructions.

Huston, J. M. Turner, for appellant. A. J. & D. James, for appellee.

From the record before us we cannot adjudge that the circuit judge should have granted a new trial for either of the reasons assigned on the motion.

The judgment must therefore be affirmed.