
    Lewis v. Ewing et al.
    Supreme Court. — Record.—New Trial. — Surprise.—Affidavit.—Bill of Exceptions. — Where a motion for a new trial is based upon affidavits alleging “ surprise,” such affidavits must he made part of. the record by a hill of exceptions, to present any question on the motion to the Supreme Court.
    From the Huntington Circuit Court.
    
      L. P. Milligan and A. Moore, for appellant.
    
      J. B. Kenner, for appellees.
   Worden, J.

— This ivas an action by the appellees, against the appellant, upon an account stated. Issue, trial, verdict and judgment for the plaintiffs, and motion by defendant for a new trial overruled.

The appellant claims that the evidence failed to sustain the verdict; but, upon looking into the bill of exceptions, we think there was evidence tending to sustain the material allegations of the complaint.

The motion for a new trial was based in part upon the ground of surprise at some of the testimony given by the plaintiffs; and affidavits in respect to this point seem to have been filed. But these affidavits were not made a part «of the record by a bill of exceptions, and we cannot notice them.

The judgment below is affirmed, with costs and five per cent, damages.  