Brooks v. Dutcher

• Citation: 24 Neb. 300,38 N.W. 780
• Parties: BROOKS v. DUTCHER.
• Decision Date: 03 July 1888
• Court: Supreme Court of Nebraska

24 Neb. 300

38 N.W. 780

BROOKS

v.DUTCHER.

Supreme Court of Nebraska.

July 3, 1888.

Syllabus by the Court.

A general exception of one sentence to a charge to a jury of ten paragraphs of instructions, made as memorandum at the close of the charge, “that the defendant excepts to each and every one of the above instructions separately,” held to be “clearly insufficient to permit an examination of the instructions,” or to review the case on illegibly written affidavits of cumulative and newly-discovered evidence not material to the issue. 22 Neb. 644, 36 N. W. Rep. 128.

A new trial will not be granted on evidence superinduced by extrajudicial statements by the trial judge, not in accord with the record of the proceedings of the trial.

Error to district court, Holt county. Reargument.

Action for slander by Abbie E. Dutcher against Franklin W. Brooks. Judgment for plaintiff, affirmed on error. 36 N. W. Rep. 128. Defendant asks for a rehearing.O. P. Mason and G. M. Cleveland, for plaintiff in error.

L. C. Chapman and M. F. Harrington, for defendant in error.

COBB, J.

This cause was brought to this court on error from the district court of Holt county, and judgment was rendered January 16, 1888, overruling the assignments of error. But the court was of the opinion that, in estimating the damages, the jury failed to take into consideration some elements which they should have considered, for which reason the verdict was greater than was warranted under all the circumstances of the case, as proven by the evidence on the trial, and for which reason the judgment of the district court was reversed, and a new trial granted, unless the defendant in error filed a remittitur of $1,000 within 30 days which was complied with, and the judgment for the sum of $2,000 was affirmed. 22 Neb. 644, 36 N. W. Rep. 128. The plaintiff in error's motion, under rule 16, for rehearing, was argued on the following grounds: “(1) The court misapplied the rule of law laid down in cases McReady v. Rogers, 1 Neb. 124, and Dodge v. People, 4 Neb. 220. Each specific portion of the instructions as given was distinctly excepted to and pointed out by the exception which was taken; and erred in declining to consider the errors assigned in the instructions of the court. (2) Not all of the newly-discovered evidence set forth in the affidavits accompanying the motion for a new trial was cumulative evidence, and the court erred in so holding. (3) The court below erred in instructing Williams, and the several other witnesses called to testify as to the general reputation of the plaintiff below for chastity, that, unless they knew what the majority of the people in the community where the plaintiff lived said in respect to her reputation for chastity, they were not qualified to testify as to that reputation; and by this instruction the trial court closed the mouths of these witnesses from disclosing the truth, and this court erred in failing to consider that fact in its opinion. This error, in connection with those contained in the instructions of the court below to the jury, should have reversed the case, and given the defendant a new trial.” The case has therefore been twice argued on the exception presented, and with an excess of legal ability and pertinacity, to impress, if possible, the court with the alleged errors of the trial.

The rule of law complained of, in the first instance, as having been misapplied to the bill of exceptions, is a plain one, and not to be misunderstood. “This rule is well settled in this court, that each specific portion of instructions which is claimed to be erroneous must be distinctly pointed out, and specifically excepted to,” is the rule cited in McReady's and Dodge's Cases. The application of it, in this case, was to the 10 consecutively numbered instructions of the court to the jury, to which no other exception was taken than that noted in a memorandum of the reporter at the close, stating, “The defendant excepts to each and every one of the above instructions separately,” which the court held to be “clearly insufficient to permit an examination of the instructions,” for the reason that it was general, and not special, as required; that it was applicable to the series as a mass, and did not distinctly point to one or more of the ten paragraphs excepted to. That this too indefinite exception should be applicable “to each and every one of the instructions separately,” according to its words, is deemed a fallacy. None of the instructions are set apart in the exception; none specified singly, and none distinctly, as erroneous, and therefore none separately. “Separate me Barnabas and Paul for the work whereunto I have called them,” was an instruction given to the church at Antioch; and those apostles were sent forth, and departed separately, to other cities. 13 Acts, 2, 3. Had they remained, neither Christian duty nor compliance with instructions were accomplished. The instructions of the court to the jury remain without a single, separate exception, appearing of record. The written exercise of separate exceptions is required by the rule, of which the abstract and the theoretical one presented is but a feeble and insufficient substitute. The reason of the rule is to be found in its necessity towards the due administration of justice. If an improper instruction falls from the court during the trial, counsel can at the time, and ought to, point out the correct rule of law, and show the objection to the instruction, that the court may modify the charge, and correct the error,...