Wilkes

This is an appeal by the defendants from a judgment entered against them, and an order denying their motion for a new trial. The transcript contains the judgment-roll, a notice of intention to move for a new trial, an order denying a new trial and certain affidavits. The findings recite that: “This cause came on regularly for trial on the twentieth day of May, 1891, before the court without a jury, a jury trial having been wavied by the parties.” And the judgment recites that, “a trial by jury having been expressly waived by the respective parties, the cause was tried before the court without a jury.” The findings of fact cover all the issues raised by the pleadings, and the judgment follows in conformity with the findings and conclusions of law drawn therefrom.

The notice of intention to move for a new trial states that the motion will be made upon the following grounds: (1) Ir *709 regularity in the proceedings of the court; (2) order of court and abuse of discretion by which defendants were prevented from having a fair trial; (3) surprise, which ordinary prudence could not have guarded against; (4) errors in findings; (5) error in the judgment. The notice further states that…