Birdsall v. Carter

• Decision Date: 05 January 1881
• Citation: 11 Neb. 143,7 N.W. 751
• Parties: BIRDSALL v. CARTER.
• Court: Nebraska Supreme Court

11 Neb. 143

7 N.W. 751

BIRDSALL

v.CARTER.

Supreme Court of Nebraska.

Filed January 5, 1881.

Error from Cass county.

Hartigan, Wheeler & Stone, for plaintiff.

Mr. Marquett, for defendant.

LAKE, J.

The first error assigned goes to the instructions given to the jury. The assignment is in these words, viz.: “That the said court erred in the instructions given to the jury in the trial of the said cause.” We have frequentlyheld that assignments similar to this were too indefinite to be considered; and recently, in the case of Tagg v. Miller, 10 Neb. 442, it is said that “if the whole charge were bad, such general assignment would be sufficient: but, not being so, the particular portions complained of should have been distinctly pointed out.” That rule is applicable to this assignment.

The second error complained of is the refusal of the court “to give the instructions which the said H. Birdsall, Son & Co. prayed the said court to give.” The instructions requested, and so refused, were two, one of which stated a rule for the estimation of damages in case the jury found a breach of warranty by the defendant, and the other the form of verdict for a finding in favor of each of the parties. The proposed rule of damages, abstractly considered, is not objectionable, but, by reason of the erroneous exclusion of certain testimony offered by the plaintiff, was rendered inapplicable. The instruction offered as to the form of verdict, although quite suitable to the issues upon which the jury were to pass, was not at all essential to the plaintiff's rights. Whether this information should be given was entirely discretionary with the trial judge. The verdict, if merely informal, could be corrected on the return of the jury into court with their finding.

The third point made by the petition in error, “that the said court erred in admitting the evidence of James Gilmore, to which the plaintiff objected,” while probably referring to an actual error in the admission of testimony, cannot be here considered for the reason that it was not mentioned in the motion for a new trial. The rule of practice which we have uniformly applied in such cases is that the particular error must have been presented to the trial court for correction before it can be made the subject of review. The fourth and eighth assignments of error--one relating to the admission of certain evidence against the plaintiff's objection, and the other to the rejection of a portion of that offered by him--must share the same fate, and for the same reason.

The fifth assignment is “that the court erred in rejecting the evidence offered by the plaintiff.” This is untrue, in fact, for the record shows that nearly all the testimony offered by the plaintiff was admitted. But if the intention was to refer to some particular items ruled from the jury, then the assignment is bad for being indefinite. An assignment so general will not be considered, unless all the evidence excluded ought to have been admitted, which is not the case here.

The sixth assignment is the only one that can be...