#### Wildman Boiler Works, Defendant in Error, v. Great Western Smelting and Refining Company, Plaintiff in Error.

Gen. No. 16,228.

Appeais AND errors — when finding of court not disturbed. The finding by the court as to the facts will not be set aside on review unless clearly and manifestly against the weight of the evidence.

Error to the Municipal Gourt of Chicago; the HoN. John H. Hume, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.

Affirmed.

Opinion filed December 22, 1911.

EastmaN, Eastman & White, for plaintiff in error.

Steele & Silber, for defendant in’error.

Mr. Justice Clark

delivered tire opinion of the court.

The defendant in error brought suit against the plaintiff in error in the Municipal Court for work done and material furnished in the repairs of a cast iron kettle used in melting metals.

There was a trial before the court without a jury, and a finding and judgment for the plaintiff.

We are asked to reverse this judgment, principally on the ground that- the finding was against the preponderance of the evidence. We have carefully read the testimony in the case and the briefs and arguments of counsel, and cannot say that the finding is so manifestly against the weight of the evidence that there should be a reversal.

The finding of a court which sees and hears witnesses is entitled to the same consideration in this court as the verdict of a jury, and it has repeatedly been held that it is only where this court can determine that the manifest weight of the evidence *535is against the finding that a judgment will be reversed on that account.

Objection is also made that tbe court committed error in peremptorily everruling tbe motion of plaintiff in error for a new trial, without giving tbe plaintiff in error an opportunity to be heard upon tbe same. "We do not find any point raised by tbe record which would justify the granting of such a motion, and no claim is made in tbe argument that any reason existed for tbe granting of a new trial except that tbe finding was against tbe weight of tbe evidence. All that tbe court could have done under tbe circumstances, in bearing tbe motion, would have been to listen to a re-argument of tbe case, and this we do not think it was called upon to do.

It ought to be observed also that where a case is tried before a court without a jury no motion for a new trial is necessary to protect the rights of tbe defeated party.

We find no error in the record, and tbe judgment will be affirmed.

Judgment affirmed.

Mr. PresidiNG Justice Baldwin took no part in tbe decision of this case.