
    B. S. Pearsall Butter Company v. Gibbon et al.
    [No. 11,297.
    Filed June 1, 1922.]
    1. Appeal. — Presenting Questions for Review. — Proceedings in Equity. — Motion for New Trial. — -Statutes.—Section 698 Burns 1914, Acts 1903 p. 338, concerning civil procedure, providing that in all cases not triable by jury the Supreme and Appel-' late Courts shall, if required by the assignment of errors, carefully consider and weigh the evidence, in no way changes the provision of the Code in reference to a motion for a new trial,, and, where no motion for new trial was filed, causes for a new trial assigned as error cannot be reviewed on appeal although the action is one in equity, p. 309.
    2. Appeal. — Presenting Questions for Review. — Failure to File Motion for New Trial. — Assigning Grounds as Error. — In an action to set aside a deed as fraudulent, no question is presented for review on appeal by an assignment of errors that the decision of the trial court is not sustained by sufficient evidence, and is contrary to law, notwithstanding that the action is equitable in character, where ho motion for new trial was filed by appellant, p. 309.
    From St. Joseph Circuit Court; Walter A. Funk, Judge.
    Action by the B. S. Pearsall Butter Company against William J. Gibbon and others. From a judgment for defendants, the plaintiff appeals.
    
      Affirmed.
    
    
      Arthur L. Paulson and Orie Parker, for appellant.
    
      Lynn J. Oare, for appellees.
   Remy, J.

— Suit by appellant against appellees to set aside a deed as fraudulent. A trial by the court resulted in a finding and judgment for appellees. Appellant filed no motion for a new trial, but in this court has assigned as errors that the decision of the trial court is not sustained by sufficient evidence, and is contrary to law.

The alleged errors not having been assigned as reasons for a new trial, it is suggested by appellees that no question is here presented. Appellant concedes the general rule to be that causes for new trial cannot be reviewed on appeal unless presented by a motion for new trial, and the ruling on the motion assigned as error, but contends that the rule is not applicable where, as in the case at bar, the proceeding is of equitable character. It is pointed out that §8 of the act of 1903 (Acts 1903 p. 338, §698 Burns 1914) “concerning civil procedure” provides that: “In all cases * * * not triable by a jury, the supreme and appellate courts shall, if required by the assignment of errors, carefully consider and weigh the evidence,” etc. The contention of appellants is without merit. The statute referred to in no way changes the provision of the Code in reference to a motion for a new trial, and it is not the contention of appellant that it could not have presented such a motion. Without a motion for a .new trial, the trial court would have no opportunity to review its own action. As was said by the Supreme Court in State v. Swarts (1857), 9 Ind. 221, “It is due the lower Court that its errors, if any, should be pointed out there, so that it may retrace its steps while the record is yet under its control.”

We hold that appellants’ assignment of errors presents no question for consideration by this court.

Affirmed.  