
    Josiah Kepner’s Administrator v. Daniel Snively’s Administrator.
    A judgment of the court of common pleas cannot be reversed because tha jury found the issue against the evidence, unless there was a motion for a now trial; and the same rule applies where the intervention of a jury is waived and the issue is submitted to the court.
    This is a writ of error to the Court of Common Pleas of Mercer county.
    George W. Bomberger, administrator of Daniel Snively, commenced an action of assumpsit in the court of common pleas of Mercer county, against Samuel R. Mott, administrator of Josiah Kepner, and filed a declaration containing the common counts, for money had and received, etc.
    To this declaration the defendant Mott pleaded the general issue, and attached to his plea a special notice, in substance, that the claims on which the suit was founded, were presented to him, as administrator, for allowance and payment, more than six months before the commencement of the suit, and said claims and demands were by him rejected as unjust, and claimed that the plaintiff was thereby barred of his action in the case, according to the statute in such case made and provided.
    At the September term, 1847, of said court, the case was submitted to the court, and the court found the issue joined for the then plaintiff, assessed the damages at one hundred and twenty-four dollars and sixty-seven cents, and entered a judgment accordingly.
    Thereupon a bill of exceptions was tendered and allowed, which is as follows :
    
      “ Be it remembered, that on the trial of this cause, in the court of common pleas of Mercer county, at the September term thereof, A. D. 1847, the said plaintiff, to maintain the issue on his part, gave in evidence (among other things) the following:
    “ A receipt from' Thomas Arnuth to said Snively, for three dollars and 'fifty cents, dated January 31, 1843, paid by said Snively to said Arnuth for said Kepner.
    “ Also, a receipt from Stephen Bell to said Snively, for sixty dollars, paid by. said Snively to said Bell, for said Kepner, in March, 1843, for a wagon bought by said Kepner of said Bell, in 1842.
    “ Also, a receipt from John Householder .to said Snively, for twenty-six dollars, paid by said Snively to said Householder, for said Kepner, in December, 1843, in payment of a note for that amount held by said Householder on said Kepner.
    “ Also, a receipt from David Heller to said Snively, for nine dollars and fifty cents, paid to said Heller on the 14th March, 1843, by said Snively for said Kepner, for smith-work done in 1842.
    “ It appeared on the trial that said receipts had been on file, but were lost from the files, and the dates and amounts and other description of receipts being agreed on by the parties, and the loss of the receipts themselves being proved, and the existence of the receipts being admitted, and the descriptions as above being admitted to be correct. Admitted also by the parties, that the said claims were presented to said S. R. Mott, administrator of Kepner, for allowance, and rejected by him, and the plaintiff rested his case.
    “ The defendant then, to maintain the issue on his part, proved by E. M. Phelps, that some time before the death of said Snively, he, Snively, sent the above mentioned claims or receipts to him, to be presented to said S. R. Mott, as administrator of Kepner, for allowance; that said Mott refused to receive said claims or receipts, or to allow them against the estate, because "they were not properly authenticated or proven, and because they were not just claims against the estate, as he thought they had been paid by Kepner. That said claims or receipts remained in his (said Phelps’s) hands for some time, could not say how long, but thinks near a year* before the commencement of this suit; said Phelps also stated and proved that said claims or receipts were not properly made out or sworn to, at the time he presented them to said Mott.
    
      “ Whereupon, the court rendered judgment in favor of said plaintiff; whereupon, the defendant excepts to the opinion of this court, in rendering said judgment, and prays that this, his bill of exceptions in this behalf, might be allowed, which is accordingly done, and upon his motion,- is ordered to be made part of the record in this case.”
    To reverse the judgment so as aforesaid rendered, this suit in error is prosecuted, and the following errors are assigned:
    1. That the claims on which judgment was rendered against the plaintiff in error, in the court below, were, at the time suit was brought on them, barred by the statute of limitations applicable to such cases.
    2. The general error that the judgment in the court below was in favor of the defendant in error, when it should have been in favor of the plaintiff in error.
    
      J. S. Conklin, for plaintiff in error.
    
      Hart & Hart, for defendant.
   Hitchcock, C. J.

The only exception which is taken m this case, as appears from the bill of exceptions, is to the opinion of the court rendering judgment. There could be no error in this. An issue was joined between the parties, and this issue was submitted to the court. Upon hearing the evidence in the case, the court found this issue in favor of the then plaintiff, and assessed the damages sustained. So far the court had been acting as a jury. In this state of case, it followed, as a matter of course, that judgment should be entered upon this finding of the issue, unless some motion was interposed, as a • motion for a new trial, or a motion in arrest of judgment. No such motion was made, and the court very properly entered the judgment.

It is nos claimed that there was any error in this, but the special error assigned is,, “ that the claims on which the judgment was entered in the court below, against the plaintiff in error, were, at the time suit was brought on them, barred by the statute of limitations applicable to such cases.” This was the question to be determined by the evidence in the case, and which was submitted to the court. But for the agreement of the parties, it must have been submitted to the jury, and although the verdict of the jury might have been against the evidence, the judgment could not have been reversed on that account. The same rule applies where the intervention of a jury is waived, and the issue in fact is submitted to the court. In either ease, to lay the foundation for a writ of error, there must be a motion for a new trial, and if that be overruled, the case can be brought into this court by writ of error, pursuant to the provisions of the act of March 12, 1845, “ to regulate the judicial courts and the practice thereof.” (44 Ohio L. 80.)

In the case under consideration, the plaintiff in error has entirely failed to present the question which he wishes to have considered by this- court, in such a manner that we can take any notice of it.

The judgment of the Common Pleas is affirmed with, costs,  