Fryberger v. Perkins

66 Ind. 19

Opinion

Howk, J.

This was a suit by the appellant, against the appellee, to recover damages for an alleged assault and battery.

The action was commenced in the Hamilton Circuit Court, but, on the appellee’s application, the venue of the cause was changed to the court below. The cause was put at issue, and submitted to a jury for trial, and a verdict was returned for the appellant, assessing his damages in the sum of one cent. Upon this verdict the court rendered judgment in favor of the appellant, for the sum of one cent in damages, and for “ the sum of one cent costs, and no more.” The appellant’s motion for a new trial was overruled, and to this ruling he excepted. He has appeal ed to this court, and has assigned, as error, the overruling of »his motion for a new trial.

One of the causes assigned for a new trial was newly-discovered evidence. The only point made by the appellant’s counsel, in their brief of this case, is, that the affidavits filed in support of this cause for a new trial, “ disclose a state of facts requiring anew trial.” These affidavits were not made part of the record by a bill of exceptions, and therefore can not be considered. But, if the affidavits were properly before us, the evidence on the trial is not in the record; and, in the absence of this evidence, it would be impossible for us to know what bearing, if any, the newly-discovered evidence would or ought to have on another trial of the case.

Ve can not say from the record, that the court erred in overruling the appellant’s motion for a new trial; and therefore we are bound to presume that it did not err in such ruling. Myers v. Murphy, 60 Ind. 282.

The judgment is affirmed, at the appellant’s costs.