The opinion
*527 ■SLOAN, J.,
dissenting.
There are four assignments of error made in this court but each one is directed at the refusal of the trial court to allow a motion for new trial and for a judgment n.o.v.
There is no right of appeal from the denial of a motion for new trial, ORS 19.010. Macartney v. Shipherd, 1911, 60 Or 133 , 117 P 814 ; White v. Geinger, 1914, 70 Or 81 , 139 P 572 . This rule is subject to the exceptions stated in Benson v. Birch, 1932, 139 Or 459, 467 , 10 P2d 1050 , and in Sherman v. Bankus et al, 1959, 218 Or 271, 274 , 344 P2d 771 , none of which have any application to this case. It does not change the rule that the grounds stated in the motion were those urged during the trial.
The grounds stated by defendant’s motion for judgment n.o.v. were not included within the statute which specifies the causes for which the motion may be allowed, ORS 18.140. Therefore, the court could not have allowed the motion.
This court, no less than a trial court, should decide a case on the record made and brought here. At most the court should only allow a new trial. The judgment should be affirmed.
Warner, J., joins in this dissent.