1 Reported in 219 N.W. 546. Defendants appealed from an order denying their alternative motion for judgment non obstante or a new trial. *Page 403
The action is in replevin to recover the possession of personal property claimed to be included in a chattel mortgage given to plaintiff by J. C. Forney, now deceased. His widow, individually and as the administratrix of his estate, and a son are the defendants. The one claims to own certain cows and the other certain horses. The jury found for plaintiff.
1. In this court we have several assignments of error which were not included in the motion for a new trial. Hence the trial court had no opportunity to pass upon them. Therefore we cannot consider them.
2. Upon the theory of the trial the principal issue related to the identity of the property in controversy with that included in the chattel mortgage. The record is lengthy and confusing. We have gone through it with care and reach the conclusion that it is a simple fact case. There is evidence from which the jury could have found either way, and therefore we have no right to disturb their determination.
Affirmed. *Page 404