Smith v. Spalding

• Citation: 51 N.W. 469,34 Neb. 128
• Parties: SMITH v. SPALDING ET AL.
• Decision Date: 02 March 1892
• Court: Supreme Court of Nebraska

34 Neb. 128

51 N.W. 469

SMITH

v.SPALDING ET AL.

Supreme Court of Nebraska.

March 2, 1892.

Syllabus by the Court.

The rule is well settled that this court will not review a judgment of the district court on a petition in error unless the alleged errors are first called to the attention of the trial court by motion for a new trial.

Error to district court, Red Willow county; COCHRAN, Judge.

Action by Samuel R. Smith against M. Ellen Spalding and her husband, Morrilo A. Spalding, on a note. From a judgment against plaintiff as to the wife, he brings error. Writ dismissed.J. Byron Jennings, for plaintiff in error.

W. S. Morlan, for defendant in error.

POST, J.

In this case a verdict was returned against plaintiff in error, and judgment entered thereon. Subsequently a motion was made for a new trial, in which certain alleged errors occurring at the trial are stated as grounds therefor. This motion, so far as the record shows, has never been disposed of, and the petition in error must for that reason be dismissed. Plaintiff in error should have called the attention of the district court to the rulings he complained of. If such rulings were erroneous, we must presume the district court would have allowed a new trial. This rule is so well settled in this court as to render the citing of authorities unnecessary. Dismissed.

The other judges concur.