Board of Commissioners v. Newman

Worden, J.

This was an action by the appellee against the appellants to recover certain fees alleged to be due from the defendants to the plaintiff for services as treasurer of said county. The cause was tried by the court.

The court, at the request of the defendants, found the facts specially, and determined “as a conclusion of law on said facts, that the plaintiff ought-to recover from the defendants the sum of seventy-nine' dollars and ten cents.” Judgment was rendered accordingly, a motion for a new trial being overruled, and exception taken.

The motion for a new trial was correctly overruled, for the reason that the evidence fairly sustained the finding.

The question sought to be presented is whether, on the facts as found by the court, the plaintiff was entitled to re*11cover; or, if entitled to recover something, whether he was entitled to recover as much as the court adjudged upon the facts found. But there was no exception taken to the decision of the court upon the questions of law upon the facts found, as is contemplated by section 341 of the code. 2 G. & H. 207. ;

We are of opinion that inasmuch as the facts were correctly found by the court, and inasmuch as no exception was taken to the conclusions of law drawn by the court from the facts found, the questions sought to be presented do not legitimately arise in the record.

The parties have agreed, “ that the cause shall be submitted and decided upon the true merits, without regard to any defects of record, assignment of errors, or abstracts; and that the questions to be submitted are, first, is the appellee entitled to any fee or compensation for services in borrowing, receiving, and paying out the one thousand four hundred and seventy-three dollars and forty-five cents, borrowed of the National State Bank, and the four hundred dollars borrowed of William Geise ? and if so, how much ? second, is the appellee entitled to a'ny fee or compensation for receiving and paying out the other items named in the bill of particulars of the complaint of the appellee ? and if so, how much ? it being admitted as to these items that the special findings are supported by the evidence given in the cause.”

We have seen that no question is legitimately presented, by this record, for our consideration, except the correctness of the ruling of the court on the motion for a new trial.

The parties, however, by the agreement above stated, have attempted to present for our determination, certain questions not presented by the record. This is an appellate court, and the agreement of the parties will not be effectual to convert it into a nisi prius tribunal.

We decline to enter upon the consideration of the questions not presented by the record, but by the agreement of the parties only.

The judgment below is affirmed, with costs,