FRANK M. BAGGETT. PLAINTIFF IN ERROR

v.

SAVANNAH, FLORIDA & WESTERN RAILWAY COMPANY, DEFENDANT IN ERROR

Maxwell, J.

The plaintiff in error seeks in this proceeding to reverse an order made by the court below setting aside a verdict there obtained by him against the defendant in error. The bill of exceptions recites the rendering of the verdict, sets forth the motion made to set it aside and grant a new trial, and states that the motion was granted and that the plaintiff excepted to this ruling of the court. The motion is as follows: “On the 25th day of October, A. D. 1899, I shall move the court to set aside the verdict for a new trial on the following grounds: 1. That the verdict was contrary to the charge of the court.

2. That the verdict was contrary to the evidence.

3. That the verdict was not supported by the evidence.

4. That the damages are excessive.

5. That the court erred in giving the instructions asked for by the plaintiff to which tlie defendant excepted.

6. That the court erred in refusing the instructions to find for the defendant. 7.. That the verdict was contrary to the law of the case.”

The first question presented to us is whether there was error in granting this motion. The first, fifth and sixth grounds of the motion are based upon charges given or refused by the court. These charges are not set forth in the bill of exceptions, nor are they made part of the record as provided in sections 1090 and 1091 of the Revised Statutes. Certain charges are copied into the transcript of the record as having been given or refused by the court below, but they do not appear to have been signed by the trial 'judge or filed by him as required by the statute, and they have no .proper place in the record. Savannah, Florida and Western Railway Company v. Brink, 44 Fla. 713, 33 South. Rep.

245. The charges given or refused by the court, therefore, are not before us for consideration, and we can not review the action of the lower court in determining whether they afforded ground for setting aside the verdict of the jury. Allen v. Lewis, 48 Fla. 301, 31 South. Rep. 286.

It is further contended that no proper motion for a new trial was entered upon the docket, for the reason that the alleged motion as entered was merely notice of a motion. It is true that its first statement is that on a certain day the defendant would move the court as thereinafter set forth. The bill of exceptions states, however, that it was made and submitted as a motion and ruled upon as a motion, and it contained a statement of the relief sought and the grounds therefor. The fact that it contained also a notice of the day upon which it would be submitted does not so rob it of its character as a motion as to make the action of the -court in so treating it reversible error. The only remaining assignment of error is that “the court erred in ordering the defendant to go hence without day.”

The record recites that on October 2oth, 1899, the following order was entered upon the motion: “Motion sustained and verdict set aside, and the defendant go hence without day, ruling excepted to, and the plaintiff allowed ninety days in which to prepare, the present bill of ex-ceptions. " October.25th, 1899. J. R. Wall, Judge.” No application for judgment non obstante veredicto-was before the court, nor was the case one which would support s\icb> application if made. It was error for the court, in ruling upon this motion, to enter final judgment for the defendant, and its action in doing so must be reversed.

The judgment of the court below, in so far as it set aside the verdict, is afíinned, and the cause remanded for a new trial, at the cost of the defendant in error.