Olson v. Berg

Decision Date31 October 1902
Docket Number13,097 - (49)
Citation91 N.W. 1103,87 Minn. 277
PartiesGUST OLSON v. E. O. BERG
CourtMinnesota Supreme Court

Action in the district court for Lac qui Parle county to recover $6,000 for malicious prosecution. The case was tried before Qvale, J., and a jury, which rendered a verdict in favor of plaintiff for $500. From an order denying a motion for judgment notwithstanding the verdict or for a new trial defendant appealed. Affirmed.

SYLLABUS

Motion for New Trial -- Exceptions.

Cappis v. Wiedemann, 86 Minn. 156, recently decided by this court, as to the proper practice under Laws 1901, c. 113 dispensing with the necessity of taking exceptions on the trial of an action, followed and applied.

Rulings of Court.

Certain rulings of the trial court considered, and held to present no reversible error.

J. H. Driscoll and Lewis E. Jones, for appellant.

Wellington Brown, for respondent.

OPINION

BROWN, J.

Action for damages for malicious prosecution. Plaintiff had a verdict in the court below, and defendant appealed from an order denying his motion for a new trial.

The only assignments of error which we are permitted to consider are with reference to certain rulings of the trial court on the admission of evidence. Some of the assignments which go to the alleged errors in the refusal of the trial court to instruct the jury in certain respects are not founded on any exceptions taken at the trial, and were not specified as errors in the notice of motion for a new trial. These cannot, therefore, be considered. We construed Laws 1901, c. 113, dispensing with the necessity of taking exceptions on the trial of an action, in Cappis v. Wiedemann, 86 Minn. 156, 90 N.W. 368, where the correct practice was pointed out: In cases where exceptions are taken at the trial, parties may proceed as under the old practice, specifying the ground of the motion for the new trial generally, but rulings not excepted to can be taken advantage of only by proceeding in accordance with the requirements of the act of 1901. That decision is followed and applied in this case.

It appears from the record that plaintiff purchased through defendant, who was acting as agent, a threshing rig; and defendant claimed that at the time of the purchase, and as a part of the transaction, plaintiff made and signed a written property statement, representing therein that he was the owner of certain specified real and personal property. Subsequent to the sale, defendant, on the claim that the property statement was false and untrue, caused the arrest of plaintiff on the charge of having procured the threshing rig under false pretenses. Three distinct prosecutions were instituted against plaintiff; the first being dismissed without hearing, the second being dismissed after a hearing before the justice, and the third without hearing, on motion of the county attorney. The principal question of fact litigated on the trial was whether the property statement was in fact given by plaintiff, and intended as a true representation concerning the property owned by him. It was claimed on...

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