JUDGES: Rhodes, C. J., delivered the opinion of the Court, Wallace, J., Temple, J., and Crockett, J., concurring.
OPINION
RHODES, Judge
The judgment against Allison cannot be sustained, because he was neither served with the process, nor was his appearance in the action entered. The other points presented by the defendant Abbott, relate to his motion for a new trial. When the motion is made on a statement, no point will be considered and no alleged error will be noticed, unless it is specified under one of the grounds of the motion. An argument in such case, in which the merits of the cause of action or of the defense are presented, is of no service to the Court, unless it legitimately arises upon one or more of the specifications in the statement. The appellant's points should accord with, or be substantially the same as the specifications in the statement; or at least should result from two or more of them, which present the same question. It is often the case, that it is proper to specify in the statement, the particulars in which the evidence is insufficient to sustain the verdict, or the finding of any fact, when the evidence in that respect is conflicting; for if the evidence clearly preponderates against the verdict or finding, it is the duty of the Court below to set it aside. But it is useless to present to the Appellate Court a point based on such specification; for the verdict or finding will not be set aside where the evidence on the point in controversy is conflicting. Under the ground that the evidence is insufficient to justify the findings in this case, there are many specifications; but the evidence in each of the particulars mentioned was conflicting, except in the fourth and ninth, and in those two, the facts mentioned are immaterial. The specifications, under the ground that the findings are against law, cannot be sustained. They present principally questions of fact or questions of law and fact combined, and it does not appear that the decision of the Court was adverse to the propositions of law laid down in the specifications.
Judgment as to Allison reversed, and as to Abbott affirmed.