#### William F. Underhill v. The Mobile & Ohio Railroad Company.

Practice—Instructions—New Trial—Motion for.

1. This court will not consider instructions not embodied in the bill of exceptions in a given case, nor reverse on the ground that the verdict was against the evidence, without the preservation therein of a motion for a new trial, the refusal by the court and exception to the ruling.

2. It is not enough to have such instructions and motion copied in the transcript by the clerk.

[Opinion filed September 11, 1891.]

Appeal from the Circuit Court of Jackson County; the Hon. O. A. Hakker, Judge, presiding.

Mr. John H. Bain, for appellant.

Messrs. Lansden & Leek, for appellee.

Green, J.

The verdict and judgment below were against plaintiff and he took this appeal. Upon examining the printed brief filed on behalf of appellant we find but two grounds urged and insisted upon for reversing this judgment, viz.: that the verdict is contrary to the weight of the evidence, and because the court gave improper instructions for the de*22fendant. The hill of exceptions contains no motion on behalf of plaintiff for a new trial, nor does the record show any exception to the ruling of the court in denying motion for a new trial, nor are the instructions complained of, preserved in the bill of exceptions; hence we can not consider and pass upon either of the errors assigned. If appellant desired this court to review the rulings of the Circuit Court with reference to the giving of instructions for defendant, he should have made them part of the record, by embodying such instructions and his exceptions to giving them, in the bill of exceptions, and not have them copied by the clerk in the transcript. If he desired us to review the facts and reverse on the ground the verdict was not warranted by the evidence, he should in like manner have preserved a motion for a new trial, its refusal by the court, and his exception to the ruling. It is not sufficient that the transcript of the record as made by the cleric shows such motion, the disposition made of it by the court, and an exception.

The judgment is affirmed. Judgment affirmed.