James v. Higginbotham

CourtSupreme Court of Nebraska
Citation60 Neb. 203,82 N.W. 625
Decision Date02 May 1900

60 Neb. 203
82 N.W. 625


Supreme Court of Nebraska.

May 2, 1900.

Syllabus by the Court.

A judgment will not be reversed for error of law occurring at the trial, unless it is alleged in the petition in error, and shown by the record, that the court erred in overruling the motion for a new trial.

Error to district court, Otoe county; Ramsey, Judge.

Action by Thomas S. Higginbotham against John W. James. Judgment for plaintiff, and defendant brings error. Affirmed.

[82 N.W. 625]

Sloan & Moran and S. J. Stevenson, for plaintiff in error.

John C. Watson, John V. Morgan, John W. Dixon, and E. F. Warren, for defendant in error.


Thomas S. Higginbotham sued John W. James in the district court of Otoe county, and obtained a verdict and judgment against him. The rulings of the court assigned for error in the petition in error were all made during the progress of the trial. It may be that some of these rulings, or all of them, were prejudicially erroneous; but, conceding that fact, the judgment must nevertheless be affirmed. The decision of the court on the motion for a new trial is not alleged as error, and cannot, therefore, be considered. Reviewing courts are authorized to consider only the errors specified in the petition in error. All others are waived. To justify the reversal of a judgment for errors of law occurring at the trial, it must appear, not only that the alleged errors were committed, but also that the court erred in denying the application for a new trial. We believe it has never been held in a law case that a judgment should be reversed for error occurring at the trial unless there were, in addition to such error, averment and proof of error in the order denying the motion for a new trial. Regardless of antecedent errors, an application for a new trial may be properly denied for the reason that it was not filed during the trial term, or within three days after the verdict was returned (Bradley v. Slater, 58 Neb. 554, 78 N. W. 1069), or on the ground that the errors committed were not the errors assigned. Whether or not there was error in the order overruling the motion for a new trial in this case, we cannot decide, because that question is not presented by the record for decision. And, without deciding that a new trial should have been granted by the district court, we cannot, of course, reverse the judgment, and thus, in effect, vacate the verdict. The following cases are referred to in support of our...

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