Bowers v. Ross

Citations

• 55 Miss. 213

Syllabus

<p>1. Practice. Motion for third new trial. Exceptions.</p> <p>Under our statute no more than two new trials in a case can be granted to the same party, and exceptions to the action of the court in overruling a motion for a third new trial cannot be considered by this court.</p> <p>2. Same. JBill of exceptions. Effect of motion for new trial.</p> <p>A motion for a new trial is not a waiver of special bills of exception taken during the trial of a case, and while this court cannot consider exceptions to the action of the court below on a motion for a third new trial, it will consider special hills of exception to the evidence and instructions taken in the progress of the trial.</p> <p>3. Same. Bill of exceptions. What to contain.</p> <p>Where exception is taken to the giving of an instruction, but the bill of exceptions does not contain the evidence necessary to enable the court to determine whether the instruction was applicable to the case, it will not be held erroneous if, in any conceivable state of facts that might have been in evidence under the issue joined, it was correct. The action of the court below is presumed to be right, unless the contrary is made to appear.</p> <p>4. Attachment. Non-residence. What evidence pertinent.</p> <p>Where an attachment is sued out on the ground of non-residence, the defendant is permitted to show, in abatement of the attachment, that, although he has a fixed abode in another state for an indefinite period, he still has his legal domicile in this state, with the intention of returning, and that he has left an establishment here, inhabited by his family, upon whom the ordinary process of law can be served, so as to bind him.</p> <p>6. Practice. Bill of exceptions. What to contain.</p> <p>A bill of exceptions to the admission of certain testimony should show so much of the other evidence in the case as will enable this court to see whether, upon the whole, the part objected to was incompetent or irrelevant; and if the bill of ex