On Petition for. a Rehearing.
Davis, J.Counsel for appellant have filed an earnest petition and brief for a rehearing. It appears that after *346the first trial, on the 30th of April, 1892, the plaintiff in the court below filed a motion for a new trial. Following the entry reciting the filing of the motion for a new trial there is copied into the record a “motion for a new trial” and an “amended motion for a new trial.” It is insisted that no statutory ground is stated in the motion for a new trial, and that the record does not show the filing of the amended motion. The clerk certifies that the plaintiff “files his motion for a new trial of this cause, to wit,” and then sets out the motion and amended motion, which, so far as we can tell, were written on one and the same paper, and filed as one and the same instrument. The trial court having treated the paper as having been filed, and having sustained the motion for a new trial, this court can not, in the absence of a satisfactory showing that he abused his discretion, set aside his act. It is true the motion for a new trial was awkwardly written, and is subject to criticism, but the motion contained sufficient substance to authorize the trial court to sustain it if he believed there had been a mistrial, and that the ends of • justice had been thwarted.
It is next urged that counsel for appellant did reserve an exception to the refusal of the court to sustain appellant’s motion to dismiss the case. The record shows that counsel for appellant made a motion to dismiss the case. The court then announced: “I will not pass upon this now; I will pass upon this in the morning.” The record then recites: “To which ruling of the court the defendant, by counsel, at the time excepted.”
All we can make out of this is that appellant excepted to the statement of the court that he -would not pass upon the motion at that time, but that he would do so in the morning. The record shows that the court then adjourned, and that the trial was continued in the morn*347ing, but it does not appear that the court ever ruled oil the motion to dismiss, or that he was asked to rule thereon.
Tiled June 20, 1894.A reexamination of the questions discussed has not convinced us that there is any error in the record requiring a reversal of the judgment of the trial court.
Petition for rehearing overruled.