Detherage v. Montgomery

• Decision Date: 29 September 1868
• Citation: 67 Ky. 46
• Parties: Detherage v. Montgomery.
• Court: Kentucky Court of Appeals

67 Ky. 46

Detherage v. Montgomery.

Court of Appeals of Kentucky.

September 29, 1868

Motion for a new trial in the circuit court is essential in an action wherein the issue presented by the pleadings was submitted to a jury. The failure to make such motion precludes the appellant from the opportunity of having the errors complained of corrected in the Court of Appeals. ( Humphreys vs. Walton, 2 Bush, 580.)

APPEAL FROM SHELBY CIRCUIT COURT.

J. W. MIDDLETON and J. L. CALDWELL, For Appellant,

CITED--

1 Greenleaf on Evidence, secs. 390, 394, 397.

2 Met., 613; Millet vs. Parker.

BULLOCK & DAVIS, For Appellee.

OPINION

PETERS, JUDGE.

The issue presented by the pleadings was submitted to a jury, and after the rendition of a verdict, and judgment thereon, no motion was made for a new trial, but an appeal by the defendant below was prayed to this court, and time obtained to make out and have allowed a bill of exceptions.

In Humphreys vs. Walton, 2 Bush, 580, this court said: " On an issue, and trial of a fact by a jury, a motion for a new trial is essential to correct the errors growing out of the evidence or instructions, before an appeal can be entertained by this court."

The failure, therefore, of appellant to move for a new trial in the court below, to have the errors complained of corrected, precludes him from the opportunity of having them corrected here.

Wherefore, the judgment must be affirmed.