Kepner's Administrator v. Snively's Administrator

The only exception which is taken m this case, as appears from the bill of exceptions, is to the opinion of the court rendering judgment. There could be no error in this. An issue was joined between the parties, and this issue was submitted to the court. Upon hearing the evidence in the case, the court found this issue in favor of the then plaintiff, and assessed the damages sustained. So far the court had been acting as a jury. In this state of case, it followed, as a matter of course, that judgment should be entered upon this finding of the issue, unless some motion was interposed, as a • motion for a new trial, or a motion in arrest of judgment. No such motion was made, and the court very properly entered the judgment.

*299It is nos claimed that there was any error in this, but the special error assigned is,, “ that the claims on which the judgment was entered in the court below, against the plaintiff in error, were, at the time suit was brought on them, barred by the statute of limitations applicable to such cases.” This was the question to be determined by the evidence in the case, and which was submitted to the court. But for the agreement of the parties, it must have been submitted to the jury, and although the verdict of the jury might have been against the evidence, the judgment could not have been reversed on that account. The same rule applies where the intervention of a jury is waived, and the issue in fact is submitted to the court. In either ease, to lay the foundation for a writ of error, there must be a motion for a new trial, and if that be overruled, the case can be brought into this court by writ of error, pursuant to the provisions of the act of March 12, 1845, “ to regulate the judicial courts and the practice thereof.” (44 Ohio L. 80.)

In the case under consideration, the plaintiff in error has entirely failed to present the question which he wishes to have considered by this- court, in such a manner that we can take any notice of it.

The judgment of the Common Pleas is affirmed with, costs,