The opinion
HORNBECK, J.
Preliminary to consideration of the errors claimed we are met with a motion by the receiver, a defendant in error, to dismiss the error proceedings for failure of the plaintiff in error to file a motion for a new trial in the trial court. Upon this question the brief of plaintiff in error is silent. We believe the law is well established in Ohio and that neither in cases of law nor in equity can the evidence be weighed on error unless the trial court has been given that opportunity upon a motion for a new trial. The errors urged by the plaintiff in error in the instant case can not be determined without a consideration of the evidence. The motion to dismiss must, therefore, be sustained upon the authority of Minnear v Holloway, 56 Oh St, 151; Everett v Sumner, 32 Oh St, 562; Spangler v Brown, 26 Oh St, 389; Randall v Turner, 17 Oh St, 262; Westfall v Dugan, 14 Oh St, 276.
ALLREAD, PJ, and KUNKLE, J, concur.