
    McSheely v. Bentley.
    New Trial.—As of Eight.—There is no error in overruling a motion for a new trial as of right in an action of ejectment, where no proof is presented to the court that the costs have been paid.
    APPEAL from the Lake Circuit Court.
    
      D. P. Baldwin and G. T. ’Wickersham, for appellant.
    
      S. E. Perkins, L. Jordan, and S. E. Perkins, Jr., for appellee.
   Ray, J.

This was an action of ejectment by the appellee against the appellant. Trial, and finding and judgment for the plaintiff below. A motion for a new trial was presented as follows:

“ Comes now the defendant, and shows to the court that he has paid all the costs herein, and now moves that the court vacate the judgment herein and grant a new trial of this cause, as a matter of right.”

There were also reasons assigned for a new trial, but they are not presented in'this court.

The motion was overruled. We cannot say that there was error. The recital in the motion, that the costs were paid, is no evidence of the fact. Proof of their payment presented to the court below, we must presume, would have secured all the relief to which the defendant was entitled.

Judgment affirmed, with costs.  