Parham v. Stith

U.S. Court of Appeals for the Eleventh Circuit October 15, 1883

Parham v. Stith, 61 Miss. 199 (11th Cir. 1883)

Chalmers

Opinion of the Court

Chalmers, J.,

delivered the opinion of the court.

This case has been pending more than seventeen years and will be found reported, Parham v. Stith, 56 Miss. 465. There have been five consecutive verdicts for the defendant and hone for the plaintiff,, who now appeals from the fifth verdict against him. The record affirmatively shows that two at least of -the former verdicts *202have been set aside on the facts. The third verdict was set aside “because, as the order setting it aside recites, it was contrary,to the law and evidence,” and the fourth, “ because the evidence ivas insufficient to warrant a verdict for defendant.” It follows therefore under the statute, § 1719, Code 1880, that the present verdict can only be set aside, if at all, for error of law, and as has been several times decided by this court, that error must be evidenced by a special bill of exceptions, and the general bill of exceptions, if there be one, embodying the evidence, cannot be looked to for any purpose. Ray v. McCary, 26 Miss. 404; Bowers v. Ross, 55 Miss. 213; Tagert v. Baker, 57 Miss. 303. There was in this case no special bill of exceptions to anything done in the court below, and hence the judgment must be

Affirmed.

Reference

Full Case Name: B. M. Parham, Surviving v. R. S. Stith, Administrator
Status: R. S. Stith
Syllabus: 1. Third New Trial. Statutory prohibition. Errors of fact. Under Code 1880, $ 3719, a third new trial can be granted the defendant only for errors of law, where the record of the case shows that at least two of five verdicts against him were set aside upon the facts. 2. Same. Errors of law. Special bills of exception. The errors of law in such a case must he evidenced by special bills of exception and the general bill embodying the evidence cannot be considered. Bay v. MaCary, 26 Miss. 404, and Bowers v. Boss, 55 Miss. 213, followed.