
    Wolf Kohn v. Annie Austin.
    New Trial — Surprise.
    Where the grounds for a new trial, is surprise, by the testimony of plaintiff’s witnesses, to be available, they must be sustained by affidavits as required by the Cieil Code — Sections 369-372.
    APPEAL FROM JEFFERSON CIRCUIT COURT.
    March 1, 1869.
   Opinion of the Court by

Judge Hardin:

The instructions and rulings of the court under which the jury found their verdict against the appellant and Sales, do not appear to have been objected to on the. trial, nor was any error therein assigned as a ground for a new trial. The objection to said instructions, taken for the first time in this court, is, therefore, not an available cause for reversal.

Nor does it appear that the court erred in refusing to grant the appellant a new trial on the ground that he was surprised by the testimony of witnesses examined by the plaintiff. If the cause of surprise assigned were sufficient if true it was not sustained by affidavits as required by the Civil Code. (Sections 369-372.)

The verdict of the jury does not seem liable to the objection that it was not sustained by tbe evidence, either as to tbe material facts in issue or tbe amount of tbe damages assessed.

Bullock & Anderson, English & Hoke, for appellant.

Jackson, McKay, Harney & Harney, for appellee.

Wherefore, tbe judgment is affirmed.  