The judgment of the court was announced by —
Lowe, J.Assault and battery, in which the plaintiff recovered $161.49. Defendant appealing, assigns for error:
C. C. Cole for the appellant — No appearance for the appellee.1st. The overruling of demurrer to third count of petition. If this was error, it -was waived by filing an answer to the whole petition, and going to trial thereon.
2d. That the court erred in instructing the jury that they might give vindictive damages. If any such instruction was given, it is not made of record.
3d. That the verdict was for a greater amount than claimed in the petition. Not so.
4th. In overruling the motion for a new trial, which was based upon the ground that the verdict was against law and evidence, excessive in amount, and that the jury was misled by the charge of the court.
The judge’s charge nor the evidence are made of record, and there is nothing to show that the verdict was excessive, and the judgment should be affirmed without further opinion.
Affirmed.