Cappis v. Wiedemann

Decision Date09 May 1902
Docket Number12,926 - (66)
Citation90 N.W. 368,86 Minn. 156
CourtMinnesota Supreme Court

Appeal by defendant from an order of the district court for Clay county, Searle, J., denying a motion for a new trial. Affirmed.


Motion for New Trial -- Exceptions to Rulings.

Where exceptions to the rulings of the court during the progress of the trial are not reserved, it is imperative upon the aggrieved party to avail himself of the benefits of Laws 1901, c. 113, and specifically designate the errors to be reviewed on the motion for a new trial. A failure to do so deprives him of the right to assign and contest such alleged errors upon appeal unless he has excepted to the same at the trial.

Question for the Jury.

Evidence considered, and held to have justified the trial court in submitting the cause to the jury upon the issues litigated under the pleadings, and that the verdict is not so palpably against the weight of the evidence as to have required a directed verdict for defendant.

James M. Witherow, for appellant.

C. A Nye, for respondent.



Action upon an account stated for work and labor performed for defendant by plaintiff and members of his family. Defendant pleaded a settlement, and payment of the amount agreed upon. The case was tried to a court and jury. At the close of the evidence defendant requested an instructed verdict in her favor. This was denied. Plaintiff had a verdict. Defendant moved for judgment, or a new trial in the alternative. This appeal is from an order denying a new trial.

Several assignments of error question the rulings of the court below upon the admission of evidence and to the charge of the court. Exceptions do not appear to have been taken to these alleged errors during the trial. Neither did defendant, in his notice of motion for new trial, specify the errors which he now assigns in his brief, but claims that he is entitled to the benefit of the same under the provisions of Laws 1901 c. 113.

Previous to this statute the reservation of exceptions to rulings of the trial court was required for the purpose of informing the opposite side and the court of the intention of the party making objections to rely thereon; and this court had, before such act, refused to consider any objection to evidence or to the charge of the court, unless followed by an exception duly entered to the same. Cogan v. Cook, 22 Minn. 137; Smith v. Kingman & Co., 70 Minn. 453, 73 N.W. 253. By Laws 1901, c. 113, the practice in this respect was changed so as to provide that

"Every ruling, order or decision made by any judge of any court of record, * * * and every instruction to a jury, shall be deemed excepted to by any party aggrieved thereby, and * * * may be reviewed upon a motion for a new trial * * * as fully as if exception thereto had been taken"; provided, however, that "upon a motion for a new trial, the party aggrieved, in his notice of motion, * * * shall specify the errors upon which he will ask a new trial, which notice, with proof of service thereof, shall be filed with the clerk and become a part of the record."

The notice of motion for a new trial in this case was upon the following grounds only:

First, because the verdict is not justified by the evidence.

Second, because the verdict is contrary to law.

Third, because of errors in law occurring at the trial, and excepted to by defendant.

These are the usual grounds for new trials required by G.S. 1894, § 5398, and were in force previous to the act of 1901, subject to the law applicable to exceptions then controlling the procedure upon review; hence the defendant cannot avail himself of objections in the record, not excepted to, unless he has brought himself within the proviso of chapter 113, supra, requiring a specification of the errors he relies upon in his notice of the motion for new trial. This he has not done. We are not, therefore, at liberty to consider any other assignment than that which questions the sufficiency of the evidence to sustain the verdict.

We shall consider the assignment that the court erred in refusing to grant defendant's motion for judgment liberally, so as to hold that such refusal of the court authorizes the inquiry whether there was evidence reasonably tending to...

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