Crawford v. Collier

OPINION

PER CURIAM

This matter is before this court upon the petition in error of John E. Crawford. A motion has been filed by the defendant in error Albert Collier to dismiss the petition in error, for the reason that no motion for a new trial was filed in the trial court within the time prescribed by law.

The record discloses that the motion for a new trial was filed 20 days after the rendition of the judgment herein, and that said motion complained of irregularities at the trial and that the judgment was contrary to the evidence. The petition in error and brief filed in this court also make complaint that the judgment is against the weight of the evidence and that there were irregularities at the trial prejudicial to said Crawford, and make no other claim of error.

In the investigation of these matters, it has been necessary for the court to read the bill of exceptions and to inquire into the merits of the cause.

The failure to file said motion for a new trial within the time prescribed by law is not a ground for dismissing the proceedings in this court. It does, however, disable this court from considering the bill of exceptions upon the claim that the judgment is against the weight of the evidence; and the bill of exceptions does not contain evidence of the irregularities concerning which complaint is made. Therefore, plaintiff in error is incapacitated to exhibit from the record the errors of which he complains, and this in turn makes necessary the affirmance of the trial court’s judgment.

Judgment affirmed.

STEVENS, PJ, WASHBURN and DOYLE, JJ, concur.