
    Sowden & Co. v. Craig.
    1. Pleadings: amendment to motion. A motion for a new trial npon grounds other than newly discovered evidence, filed within the three days prescribed by statute, may, by leave of court, be amended at any time during the term, the amendment being germain to the grounds set out in the original motion.
    
      
      Appeal from, Des Moines District Court.
    
    Friday, June 15.
    Action of replevin; trial to a jury; verdict for plaintiff, which, on motion of defendant, was set aside and a new trial granted. The plaintiffs excepted and appeal.
    
      Charles N. Phelps for the appellants.
    
      Tracy & Newman for the appellee.
   Cole, J.

The cause was tried on the 9th day of January, 1866, and on the 10th (the next day) the defendant filed his motion to set aside the verdict and grant him a new trial. The grounds for the mot¿on were alleged errors in giving and refusing instructions; that the verdict was contrary to the evidence; and that the defendant had discovered new and material evidence since the trial. On the 16th day of January, the defendant asked and obtained leave to amend his motion for a new trial, and file affidavits in support thereof, by adding, “ and because of accident, and surprise, and fraud to the real party in interest.” To this action of the court the plaintiffs at the time excepted.

The objection to the ruling of the court is based mainly upon section 8114 of the Revision, which provides that the application for a new trial, except for newly discovered evidence, shall be made at the term, and within three days after the verdict or decision was rendered.

The amendment being made more than three days after the rendition of the verdict, is alleged by appellants’ counsel to be in violation of this provision. The amendment was germain and proper to the object and purpose of the original motion, and could not in any legitimate sense be regarded as a new motion.

It was not within the letter or spirit of the statute quoted, and the court did not err in allowing the amendment to be filed. See Revision, § 2977.

The transcript shows that certain evidence was used before the court below, on the hearing of the motion for a new trial, and there are three affidavits set out at length in the transcript, but there is no statement in the bill of exceptions, or certificate in the transcript, showing that all the evidence used on the hearing in the District Court is before us.

In such case we cannot pass upon the merits, but can only order that the judgment stand

Affirmed.  