Miles

This action was brought by the plaintiffs against the defendants for damages for an alleged libelous writing published by the latter concerning the former and involving an attack upon their character and reputation as real estate brokers.

The questions of fact were tried by a jury, who found for the defendants. The appeal is from the judgment and from a purported order denying plaintiffs a new trial.

The defendants first protest that the record does not show that a motion for a new trial was presented to and determined by the court below, hence “there is no appeal here from an order denying a new trial.” As to this, all that the record itself discloses is that the defendants gave notice of intention to move for a new trial, and a notice that, on the eleventh day of December, 1924, they “will move the court” to vacate and set aside the verdict of the jury and the judgment thereon entered. There is, however, nothing in the record to show that a motion for a new trial was ever presented to the trial court, or that said court ever passed upon or decided or made an order denying such a motion. In their opening brief counsel for plaintiffs assert that “in due time a motion for a new…