#### Charles Butt v. John P. Lee.

Practice — Defective Record — Motion for Neiv Trial — Clerk's Statements

1. Where the bill of exceptions contains no motion for a new trial, and no exception is preserved to the overruling of such a motion, an assignment *420of error that the court erred in refusing a new trial on the ground that the verdict was contrary to the evidence, can not be considered by this court.

2. A statement in the judgment order, as copied by the clerk into the record, to the effect that the motion for a new trial was overruled and a new trial denied, does not make such motion a part of the record.

[Opinion filed December 7, 1888.]

Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.

Mr. Jesse B. Barton, for appellant.

Mr. Walter M. Howland, for appellee.

Moran, J.

Appellant brought an action against appellee, alleging a breach of a certain contract, and claiming liquidated damages in the sum of $3,000, as provided by the contract.

The case was tried by a jury, and a verdict found in favor of plaintiff, but the damages were assessed at $50.

The only error assigned on this appeal is that “the court erred in refusing a new trial on the ground that the verdict was contrary to the evidence.”

There is in the bill of exceptions no motion for new trial set out, and no reference whatever to any such motion. In the judgment order of the court, as copied into the record by the clerk, it is stated that the plaintiff’s motion theretofore entered therein for a new trial in said cause is overruled and a new trial denied, but such statement by the clerk does not make a motion for a new trial a part of the record. There is. nowhere in the record any exception preserved to the overruling of any motion for a new trial, and hence the error assigned can not be considered by this court Smith et al. v. Kahill, 17 Ill. 67; Boyle v. Levings, 28 Ill. 314; Duncan v. Chandler, 5 Ill. App. 499; Deitrich v. Waldron, 90 Ill. 115.

The judgment must therefore be affirmed.

Judgment affirmed.