Epitomized Opinion

In the trial court a verdict in favor of Kelley was returned September 22, 1921. A motion for a new trial was filed September 26th.' On September 29th the trial court found that the failurel to file the motion for a new ..trial within three days was that the *570illness of the defendant’s attorney unavoidably prevented its filing. No bill of exceptions was taken in the hearing that resulted in this entry, nor was there any exceptions entered thereto. On October 7 the plaintiff filed a motion to strike from the record the entry of September 28 and to strike out also the motion for a new trial. The Court of Appeals held in affirming the judgment of the trial court:

1. That this motion to strike was properly overruled; that the entry evidenced the court findings and the motion to strike was an ineffectual attempt to have a new hearing and preserve a record of exceptions on a matter which the court has regularly passed.

2. No assignment of error is urged except that the verdict is not sustained by the evidence and the whole" record being before the court it was determined that no error prejudicial to the plaintiff, Kelley, intervened at the trial.