Helm v. Coffey
| Decision Date | 28 March 1882 |
| Citation | 3 Ky.L.Rptr. 677,3 Ky.L.Rptr. 532,80 Ky. 176 |
| Parties | Helm v. Coffey. |
| Court | Kentucky Court of Appeals |
1. In a common law action, where the law and facts are submitted to the court, a motion and grounds for a new trial are necessary in order to obtain a review by this court of the judgment.
2. In their absence, nothing is before this court except the question whether the pleadings state a cause of action. All else is waived.
3. The judgment is not flagrantly against the evidence.
APPEAL FROM DAVIESS CIRCUIT COURT.
GEORGE W. JOLLY FOR APPELLANT.
Although the cause was submitted to the court for a trial of law and fact, no motion for a new trial nor grounds were necessary. ( Union Ins. Co. v. Groom, 4 Bush, 289; Blakey v Johnson, 13 Ib., 202; McHugh v. Schuylkill, 67 Penn. St., 391.)
OWEN & ELLIS FOR APPELLEE.
1. The judgment is abundantly sustained by the evidence. (Miller v Hughes, 1st A. K. Mar.; Saufley v. Howard, 7 Dana.)
2. This case is the same as if it had been tried before a jury, and inasmuch as no motion for a new trial was made upon grounds filed, this court will not reverse except for error in pleading.
The principal question to be considered is, whether a motion and grounds for a new trial are necessary in a common law action where the law and facts are submitted to the court without a jury.
We are of opinion that such motion and grounds for new trial are necessary in order to a review by this court of any alleged error committed by the court below during the progress of the trial. In the absence of a motion and grounds for a new trial, nothing is brought to this court for review on appeal except the inquiry as to whether the pleadings state any cause of action or any defense, and whether the evidence heard and properly presented by bill authorize the judgment. Every other error is waived by the failure to call the attention of the court below to it by motion and specific grounds assigned. This requirement seems to us as important where there is no jury as where there is a jury, for ordinarily questions of law are for the court, and questions of fact for the jury, and a failure to call for a jury operates simply to make the court the judge of the facts as well as of the law, but does not, in any way, alter the practice as to the manner in which any alleged error of the law committed by the court may be taken advantage of. ( Harper v. Harper, ...
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