Hoyer v. Breakfield

42 N.E.2d 718, 34 Ohio Law. Abs. 416

Opinion

OPINION

BY THE COURT:

Submitted on motion of plaintiffappellee to dismiss the appeal, the basis for the motion being that no motion for new trial, as contemplated by statute, was filed in the trial court.

In the trial after the municipal judge had made a finding in favor of the plaintiff and against the defendant and on the day thereof, the defendant filed the following motion:

“Now comes the defendant, by his counsel, and moves the court for leave to re-argue this case on which the decision was rendered March 16, 1940.”

Appellant insists that this motion is not a motion for new trial. We believe the contention is well made because that which the defendant sought was not a new tr'al biu merely leave to re-argue the case The granting of a new trial accords the right to the mover to present his case anew upon the issues of fact and the law.

If, however, the motion can be treated as a motion for new trial, inasmuch as the grounds therefor are not set forth in the motion, its overruling could not be the basis of an assignment of error. Westfall v Dungan et, 14 Oh St 276, Hoffman v Gordon & Bro., 15 Oh St 212. Of the five errors assigned, the first, “that the decision and judgment is not sustained by sufficient evidence" may not be considered by this court.

The other four assigned errors might be exemplifled upon the record without weighing the evidence. The motion to dismiss the appeal will, therefore, be overruled.

GEIGER, PJ., BARNES & HORNBECK, JJ., concur.