
    No. 8677.
    McElhoes v. Dale.
    New Tbial. — Practice.—Recovery.—A motion for a new trial, on the ground that the finding is contrary to law, or to the evidence, presents no question in reference to the amount of the recovery.
    From the White Circuit Court.
    
      H. P. Owens and W. E. Uhl, for appellant.
   Woods, J.

The only error assigned is the overruling of the appellant’s motion for a new trial. The causes stated in the motion for a new trial are:

1st. The finding of the court is contrary to law.

2d. The finding is contrary to the evidence.

3d. The finding is contrary to the law and the evidence.

The entire brief of the appellant is addressed to the proposition that the amount of the recovery was too large by the sum of one hundred and fifty dollars, and interest thereon from the date when it ought, as is claimed, to have been credited on the note sued on, it being conceded that the finding in favor of the plaintiff for a small amount is right. The causes alleged in the motion for a new trial, it is manifest, do not present the question discussed. In order to raise a question as to the amount of damages, or of the recovery, the new trial must be moved for on the ground of excessive damages, or for error in the assessment of the amount of the recovery. Code 1852, sec. 352; R. S. 1881, sec. 559; Spurrier v. Briggs, 17 Ind. 529; Rosenbaum v. McThomas, 34 Ind. 331.

Judgment affirmed, with costs.

On Petition for a Rehearing.

Woods, J.

Counsel for the appellant now say that “any

concession made in their original brief that anything is due on the note in suit, or that a judgment for any sum whatever should have been rendered in favor of the appellee, is not warranted by the evidence,” and ask a rehearing, in order that the case may be considered from the standpoint so suggested.

We are not disposed to depart from the rule which forbids the raising of new questions, especially by the appellant, in a petition for a rehearing.

The petition overruled, with costs.  