Hempstead sued Banks upon a promissory note for the payment of 149 dollars.
Defendant answered—
1. That the note was obtained by fraud.
2. That it was given without consideration.
3. That the consideration upon which it was given had failed, setting forth specially the facts constituting the failure.
In this condition, the cause was continued to the February term, 1857. On the fourth day of that term, the case was called, and the plaintiff not appearing, though his attorney was called, it was, upon the defendant’s motion, continued. Afterwards, on the same day, the plaintiff appeared by his attorney, and moved, upon affidavit, to set aside the continuance; but his motion was overruled, and no exception was taken. And afterwards, on .the fifth day of the term, he again, upon an additional affidavit, moved to set aside the same continuance. Pending this motion, the defendant moved for time to prepare and file counter-
On the sixth day of the term, the cause was submitted to the Court for trial, and upon the trial, the plaintiff gave in evidence the note sued on, and rested; and the defendant having given part of his testimony, the plaintiff moved for leave to file a reply, which motion was, over the defendant’s objection, sustained, and the plaintiff replied to the answer by a general denial.
The Court, having heard the evidence, found for the plaintiff. And thereupon the defendant moved for a new trial on three grounds—
1. That the finding is contrary to law.
2. That the same is contrary to the evidence.
3. Newly discovered testimony.
This motion was overruled, but no exception was taken. The Court rendered judgment upon the finding, &c.
As the refusal to sustain the motion for a new trial was not made the subject of an exception, the action of the Court relative to that motion is not properly before us, and the case stands in this Court as though no such motion had been made. As we have seen, the exceptions taken relate to the setting aside of the continuance, the refusal to give time to file counter-affidavits, and the leave given to reply. And there being, in effect, no motion for a new trial, the result is, the point involved in the exceptions are not examinable in this Court. See Kent v. Lawson, at the present term (1).
The judgment is affirmed with 10 per cent, damages and costs.
(1).
See the last case in this volume.