
    Ward v. Quinlivin, Appellant.
    Jury Trial: motion for new trial. The Supreme Court will not reverse a judgment for refusal of the lower court to allow a trial by jury, unless the record shows that such refusal was made a ground of a motion for a new trial, and the motion is preserved in the bill of exceptions, nor unless it appears that the appellant may have been prejudiced by such refusal.
    
      Appeal from Buchanan Circuit Court.—Hon. J. P. Grubb, Judge.
    
      Allen H. Vories for appellant.
    
      B. R. Vineyard for respondent, cited Blount v. Zink, 55 Mo. 455.
   Sherwood, C. J.

Action on a judgment recovered in the State of New York. The answer set up that the judgment was procured by fraud, and is the same answer which was held sufficient when this cause was here before. (57 Mo. 425.) The plaintiff' had judgment. No evidence is preserved in the bill of exceptions, nor any motion for new trial; the only point preserved being that the court, treated the cause as an equitable' one by reason of the fraud pleaded, and refused defendant a trial by jury. It is altogether unnecessary to inquire whether or not the defendant was entitled to a jury. If entitled, the failure to give him one was purely matter of exception to be taken advantage of, and called to the attention of the lower court by motion for new trial, in order that its alleged error might be afforded opportunity for correction. (Weatherall v. Harris., 51 Mo. 65, and cases cited. Id. 108; Id. 115; Id. 455). Again, for aught that appears in the record, since no evidence is preserved, the defendant has been in noways prejudiced, even if entitled to a jury trial. No evidence having been preserved, we shall not assume that any was introduced to uphold the allegation of fraud in the answer, and if none were introduced, we certainly would not go through the barren formality of sending the cause back for a jury trial, when according to the showing made here such trial could avail the defendant nothing. We therefore affirm the judgment.

All concur.

Affirmed.  