Drexel v. Daniels

• Decision Date: 16 September 1896
• Citation: 68 N.W. 399,49 Neb. 99
• Parties: DREXEL ET AL. v. DANIELS ET AL.
• Court: Nebraska Supreme Court

49 Neb. 99

68 N.W. 399

DREXEL ET AL.

v.DANIELS ET AL.

Supreme Court of Nebraska.

Sept. 16, 1896.

Syllabus by the Court.

1. An assignment in a petition in error that the verdict is contrary to law does not present for review alleged errors in the instruction.

2. Such an assignment raises the question whether the verdict is contrary to the law as contained in the charge given by the court to the jury.

3. Held, that the verdict is sustained by the evidence, and that the assessment of the amount of recovery is not excessive.

Error to district court, Douglas county; Scott, Judge.

Action by George F. Daniels and others against John C. Drexel and others. From a judgment for plaintiffs, defendants bring error. Affirmed.A. C. Wakeley, for plaintiffs in error.

Gregory, Day & Day, for defendants in error.

NORVAL, J.

This was an action to recover upon an alleged order by the defendants, requesting plaintiffs to manufacture and ship to defendants a quantity of slippers. There was a trial to a jury, with verdict and judgment for plaintiffs for the full amount claimed in the petition. Defendants have removed the cause into this court, assigning 19 grounds for reversal, only 3 of which are relied on in the brief filed, and none others will be considered. The assignments argued are: (1) The verdict is contrary to law; (2) verdict is not sustained by sufficient evidence; (3) error in the assessment in the amount of recovery, the same being too large.

Under the first of these assignments, counsel for defendants below has argued at length that the verdict is contrary to the principles of law applicable to the facts, and which should govern in the case, and that the charge of the court to the jury was erroneous. The assignment that the verdict is contrary to law is insufficient to call for a review of the instructions. Alleged errors therein, to be available in this court, must be raised by proper exceptions in the trial court, in the motion for a new trial, and by specific assignments in the petition in error. Here a general exception to the entire charge was taken, and not to each paragraph, and alleged errors in the instructions were grouped in a single assignment in the motion for a new trial. In this condition of the record, the instructions cannot be considered, and yet the defendants, under the assignment that the verdict is contrary to law, seek to have us do so, when the correctness of the charge of the court is not thereby challenged. That the verdict is contrary to law is one of the statutory grounds for a new trial, and if it will search the record for, and present for review, errors in the court's charge, then under such an averment the rulings upon admission and exclusion of testimony, and any other decisions made during the progress of the trial, could be reviewed, and the other specific grounds for a new trial specified in the Code are entirely superfluous. The averment that the verdict is contrary to law presents the question whether the finding of the jury is in accord with the law embodied in the instructions. Haynes, New Trials & App. § 99, and cases cited; Froman v. Patterson (Mont.) 24 Pac. 692;Bauder v. Schamber (S. D.) 63 N. W. 227;Brumagim v. Bradshaw, 39 Cal. 24. In the last case the court say: “It is not enough to aver that the verdict is ‘against law,’ and then offer to support the averment by showing that the verdict is not supported by the evidence, and is for that reason against law. If such a course of proceeding was tolerated, all the other specific grounds for new trial enumerated in the statute might for the same reason be condensed into the one general ground that ‘the verdict is against law,’ for in that general sense it would be ‘against law’ if there was any valid reason whatsoever for a new trial. But the statute, in authorizing a new trial on the ground that the verdict is ...