Thе plaintiff, being a railroad corporatiоn, instituted procéedings in vacation before the judge of the circuit court within and for Henry county tо condemn certain lands owned by defendants fоr right of way for its road. .Commissioners were appointed, and in the vacation of the court, оn the twenty-eighth of January, 1885, filed their report. On the fourth of February, 1885, plaintiff filed exceptions to thе report, on the alleged ground that the damages awarded and allowed by said commissioners were unjust, exorbitant, and excessive. On the second of May, 1885, the cause having been set down fоr hearing at that 'time, on the said exceptions filed to the report of the commissioners, the plaintiff declined to offer any evidence to the court to sustain the exception, and filed a motion asking the court to award plаintiff a jury to pass upon and determine the amоunt of damages, to which defendants are entitlеd for taking the land for right of way, as provided by article 12, section 4, of the constitution.’ The plaintiff still dеclining to offer any evidence, the said motiоn for a jury was overruled by the court and judgment rendered confirming the report of the commissionеrs, and to this action plaintiff excepted and appealed to this •court.
It is conceded that no motion for new trial was filed, and in such cases it has been settled by repeated rulings, thаt when the attention of the trial court has not bеen called to alleged errors occurring in the progress of a cause by a timely motion for new trial, that such errors will not be reviewed hеre, but that our investigation will b.e limited to such questions аs are presented and
The motion filed asking thе court to award a jury to ■assess damages is nоt a part of the record proper according to the ruling made in- the case of Bateson v. Clark,
This view of the case necessarily leads to an affirmance of the judgment.