Dailey v. Bond
| Decision Date | 05 October 1920 |
| Docket Number | No. 226.,226. |
| Citation | 111 A. 394 |
| Parties | DAILEY v. BOND. |
| Court | Vermont Supreme Court |
Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, and SLACK, JJ.
Raymond Trainor, of White River Junction, for plaintiff.
Pingree & Pingree, of White River Junction, for defendant.
During the trial certain evidence was admitted, subject to the defendant's exception, and later, at his request, it was withdrawn from the consideration of the jury. The exception to the admission of such evidence is not relied upon; but, after verdiet and judgment against him, the defendant brought a petition to the county court, asking that the verdict be set aside and a new trial granted him, because the court failed to instruct the jurors, either at the time such evidence was withdrawn from their consideration, or in its charge, not to consider the same; that they did not know that such evidence had been withdrawn from their consideration, but considered it, with the other evidence, and based their verdict largely thereon. The petition was denied, and the defendant had an exception.
The exceptions filed do not show that any specific ground for the exception to the denial of his petition was stated by the defendant. The draft of exceptions presented to the presiding judge contained the following:
"For that the exercise of discretion by the court in overruling defendant's motion was an abuse of discretion, and the court should have granted the motion."
This was evidently stricken out by the presiding judge before the draft was signed.
Counsel for the defendant call, our attention to a letter from the presiding judge to them, in which he says, in substance, that upon examination of the transcript he found that the defendant did state as a ground for exception the reason given in the language quoted, and that he would amend the exceptions accordingly, if so desired. It is not claimed, however, that anything further was done, respecting this mistake. This correspondence is dehors the record, and cannot be considered by us. We are confined to the exceptions before us, and cannot consider questions that might have been, or were, raised in the trial below, unless they are properly and regularly here.
But we think that the petition was properly denied. The court was not requested to instruct the jury to disregard the evidence that had been withdrawn from their consideration, nor was an exception taken to the failure of the court to charge on this subject. This is...
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...will not be granted, because the court failed to charge upon some point which counsel had permitted to pass unnoticed. Dailey v. Bond, 94 Vt. 303, 304, 305, 111 A. 394. See, also, Woodhouse v. Woodhouse, 99 Vt. 91, 147, 148, 130 A. So far as the damages were claimed to be excessive, the mot......
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...shortage or error to the attention of the court. Cross v. Passumpsic Fibre Leather Co., 90 Vt. 397, 410, 98 A. 1010; Dailey v. Bond, 94 Vt. 303, 304, 305, 111 A. 394. It is said in defendant's brief that the court charged, after defining and illustrating the phrase "preponderance of evidenc......
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Merrihew v. Goodspeeo
...to the claimed shortage or error, so that it may be corrected. MacDonald v. Orton, 99 Vt. 425, 433, 134 A. 599; Dailey v. Bond, 94 Vt. 303, 304, 305, 111 A. 394. Here, as we have seen, the language of the exceptor was inadequate reasonably to indicate to the court the fault found with the c......
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...duty of counsel to call the attention of the court to the claimed shortage or error so that it might then be corrected. Dailey v. Bond, 94 Vt. 303, 304, 305, 111 A. 394; Merrihew's Adm'r v. Goodspeed, 102 Vt. 206, 216, 147 A. 346, 66 A. L. R. 1109; Dniley v. Town of Ludlow, 102 Vt 312, 314,......