
    Everett, Weddell & Co. v. Sumner.
    1. The findings of a court or of a jury, upon issue of fact, are not subject to review on proceedings in error, except where it appears from the record that a motion for a new trial was made on the ground that the verdict is against the evidence, and that such motion has been overruled.
    2. A reviewing court will not take notice of an exception to the oharge of a court to a j ury, where the charge consists of several legal propositions, some of which are sound, unless the exception distinctly points out the portion of the charge claimed to he erroneous.
    Error to the District Court of Cuyahoga county.
    Plaintiffs in error, who were plaintiffs below, filed a petition in the court of common pleas against Clarke & Sumner. A. A. Sumner was served with process. The action was prosecuted to a judgment against Mm. Suit was brought upon an accommodation acceptance, drawn upon the firm of Clarke & Sumner by Pool Bros., and dated January 22, 1868.
    On trial to a jury, verdict was rendered for plaintiffs, and finally a judgment in their favor was entered upon the verdict.
    Defendant made a motion for a new trial, and assigned therefor reasons as follows :
    1. That there was error in the charge of the court to the
    2. That by the evidence offered at the trial the defendant was taken by surprise, which ordinary prudence could not have guarded against.
    3. That there is newly discovered evidence, material for the defendant, which he could not with reasonable diligence have discovered and produced at the trial.
    This motion was overruled, and a bill of exceptions taken, embodying all the testimony offered on the trial, the instructions requested by defendant, and the entire charge of the court as given to the jury.
    The case went to the district court on petition in error, and the judgment of the court of common pleas was reversed. The proceedings here are to have the judgment of the district court, reversing the judgment of the court of common pleas, reversed, and to have the judgment of the court of common pleas affirmed.
    From the view of the case we have taken, a moje extended statement of facts is deemed unnecessary.
    
      S. Burke, for plaintiff in error.
    
      De Wolf & Schioan, and J. K. Hord, for defendant in error.
   Ashburn, J.

The condition of the record does not require the determination of any question on the merits of the case. Only questions of practice are presented.

Nothing appears on the record to show what, if any, testimony was offered by plaintiff, and admitted by the court on the trial, calculated to take the defendant by surprise, which ordinary prudence could not have guarded against.

The record is equally wanting in facts tending to show the discovery of new and material evidence which defendant could not, with reasonable diligence, have discovered and produced on the trial.

The assignments for a new trial based on these grounds, being wholly unsupported, must fall.

The remaining assignment for a new trial, “ that there was error in the charge of the court to the jury,” is not such an assignment of cause .for a new trial as will authorize the evidence, given on the trial, to be brought on the record for review by bill of exceptions.

By the'act of April 12, 1858 (S. & C. 1155), authorizing a review of the evidence for alleged error in overruling a motion for a new trial, a party demanding a review of the evidence must lay the foundation for bringing the evidence on the record for review, by assigning, in the motion for a new trial that the verdict of the jury, or finding of the court, is against “ the evidence.” No such cause for a new trial was assigned. Such an assignment, as a reason for a new trial, is an indispensable prerequisite to bring the evidence on the record by bill of exceptions for review on the overruling the motion.

We know of no exceptions to this rule. Prior to the act of 1858, it was held, in the case of Remington v. Harrington, 8 Ohio, 508, that, “in motions for a new trial, points not stated in the motion are not open for discussion in the court in bank.” And in Westfall v. Hagan et al., 14 Ohio St. 276, it was held: “ The findings of a court or jury, on the trial of issues of fact made by the pleadings in the action, are not subject to review on error, except where it appears from the record that a motion for a new trial had been made on the ground that the verdict or finding of the court is against the evidence, and such motion has been overruled.”

In this case, no motion for a new trial having been made for the reason that the verdict was against the evidence, there was no authority for bringing the evidence into the record. Hence the district court was not authorized to review it. Ide v. Churchill, 14 Ohio St. 372.

On the conclusion of the evidence, the defendant requested the court to give in charge to the jury three propositions of law. The court refused to charge as requested. No exception was taken to this refusal. The court then gave a charge to the jury consisting of a series of legal propositions. At the conclusion of the general charge the following general exception is found, “to all of which the defendant then and there excepted, and, after a verdict and before judgment, made his motion for a new trial, which was overruled — to all of which the defendant at the time excepted, and presented this his bill of exceptions, which was allowed and signed, and made part of the record.”

It has been repeatedly held in this state, that where the charge of the court to the jury consists of several distinct legal propositions, a general exception is insufficient. The exception must be specific, and distinctly point out the portion, or propositions in the charge claimed to be erroneous.

Under this general exception, the district court was not authorized to look into the charge of the court.

The party seeking a review, having neglected to lay the necessary foundation for bringing the case into the district court for review on the law or the evidence, was not in a condition to invoke the action of the court in either of these respects. It follows that the district court erred in reversing the judgment of the court of common pleas.

Judgment of the district court reversed, and that of the common pleas affirmed, and cause remanded to the court of common pleas for execution.  