Schwartz v. Bendel — 2 E.D. Smith 123

Majority

p. 123

Schwartz v. Bendel.

Headnote

It seems a sufficient ground for dismissing an appeal, that the notice of appeal does not state the grounds thereof.

This court, on appeal from a justice’s court, has no power to order a new trial on the ground of newly discovered evidence, where a trial has been had and both parties have appeared below.

Tuts was an appeal by the defendant from a judgment of one of the district courts, given after a trial at which both parties appeared. The appellant submitted affidavits of newly discovered evidence. No grounds were assigned in the notice of appeal.

The notice of appeal in this case assigns no grounds therefor. The statute is explicit on this subject, (Code, § 353,) and we should be warranted in dismissing the appeal upon this ground.

I have, nevertheless, looked at the defendant’s affidavit, which was submitted to us with the return, and I find it there stated, that the ground of appeal is, that the judgment was rendered upon insufficient evidence, and against the weight of evidence. I think this has no just foundation.

p. 124

It is plainly a case in which the finding of the court below should be sustained.

We have not examined the other affidavits submitted, for the reason that we have no power to order a new trial, on the ground that the defendant has discovered further evidence.

The judgment must be affirmed, with costs.