
    James Holmes v. Michael Moore.
    Trial — Waiver—Proceeding to Trial Without Jury.
    Where a party fails at the trial to except to the action of the court in proceeding to trial of the cause without a jury, and to matee it a ground of motion for a new trial, the error of the court in proceeding to trial without a jury was waived.
    APPEAL FROM KENTON CIRCUIT COURT.
    September 16, 1873.
    
      Stevenson & Myers, for appellant.
    
    
      Pryor, for appellee.
    
   Opinion by

Judge Peters :

If appellant did not waive his right to a trial of the issue by a jury he should have excepted to the opinion of the court in proceeding to try the case without the intervention of a jury, and moved the court for a new trial on that ground, and as appellant failed to except at the time, the error of the court in trying the case without a jury was waived.

But as appellee failed to pay the amount for which he was bound before suit, and after the action was instituted failed to tender the money, he was liable for the costs and the court below erred in setting aside the judgment for costs and rendering judgment against appellant therefor.

Wherefore the judgment is reversed and the cause remanded with directions to render judgment in favor of appellant against appellee for the costs incurred by him in the court below.  