City of Kearney v. Smith

• Decision Date: 04 March 1896
• Citation: 66 N.W. 538,47 Neb. 408
• Parties: CITY OF KEARNEY v. SMITH.
• Court: Nebraska Supreme Court

47 Neb. 408

66 N.W. 538

CITY OF KEARNEY

v.SMITH.

Supreme Court of Nebraska.

March 4, 1896.

Syllabus by the Court.

1. Assignments of error relating to the giving and refusal of instructions cannot be considered unless the record discloses that exceptions were taken at the trial.

2. Assignments of error not presented by the briefs or oral argument will be treated as waived.

Error to district court, Buffalo county; Holcomb, Judge.

Action by Louisa Smith against the city of Kearney. Judgment for plaintiff, and defendant brings error. Affirmed.W. D. Oldham, for plaintiff in error.

J. S. Murphy and F. G. Hamer, for defendant in error.

IRVINE, C.

The defendant in error recovered a judgment of $450 against the plaintiff in error for injuries sustained by reason of a fall alleged to have been caused by a defective sidewalk. The city seeks to reverse this judgment. The first, second, third, and fourth assignments of error relate to the giving and refusal of instructions; but, as the record does not disclose that any exceptions were taken to either the giving or refusal of instructions, these assignments are not open to examination.

The only other assignment is that the damages were excessive. Neither by oral argument nor by brief was this assignment called to the attention of the court, and it is therefore treated as waived. Even were it not waived, we could not consider it, because there is no certificate of the clerk of the court authenticating what is filed here as either the original or a copy of the bill of exceptions filed in the case. Judgment affirmed.