Tower v. Densmore

• Decision Date: 11 April 1879
• Parties: A. C. TOWER, Plaintiff in Error. v. Harvey DENSMORE, Defendant in Error.
• Court: Nebraska Supreme Court

8 Neb. 384

1 N.W. 315

A. C. TOWER, Plaintiff in Error.

v.Harvey DENSMORE, Defendant in Error.^*

Supreme Court of Nebraska.

Filed April 11, 1879.

Error from Stanton County.E. P. Weatherby and W. M. Robertson, for plaintiff in error.

Crawford & McLaughlin, for defendant in error.

MAXWELL, C. J.

--In October, 1877, the defendant in errocommenced an action in the district court of Stanton County against the plaintiff herein, to recover damages for the wrongful conversion of certain goods alleged to have been owned by the defendant in error. The plaintiff in error answered the petition of the defendant in error, denying that he (the defendant in error) was the owner of said goods, and alleging that said goods came into his possession as assignee in bankruptcy in the matter of Densmore & Hepper, bankrupts.

On the trial of the cause, the jury returned a verdict in favor of the defendant in error, for the sum of $1,375.81, upon which judgment was rendered. The plaintiff in error filed a motion for a new trial assuming as grounds therefor:

“1. Irregularity in the proceedings of the court.”

“2. Irregularity in the proceedings of the jury.”

“3. Abuse of discretion by the court in allowing the plaintiff to prove the value of the goods in controversy, or the damages sustained after the evidence of both parties had been given to the jury, and the argument for the defense closed.”

“4. Misconduct of the jury.”

“5. Misconduct of the prevailing party.”

“6. Excessive damages, appearing to have been given under the influence of passion or prejudice.”

“7. That the verdict is not sustained by sufficient evidence.”

“8. That the verdict is contrary to law.” “9. On account of newly discovered evidence, material to the defendant, which he could not with reasonable diligence, have discovered and produced at the trial.”

“10. On account of accident occuring at the trial of the cause, which ordinary prudence could not have guarded against.”

“11. On account of surprise, which ordinary prudence could not have guarded against.”

“12. On account of the incompetency of one of the jurors who tried the case.”

“13. On account of error of law, occuring at the trial and excepted to by the defendant.”

Attached to the motion is the affidavit of the plaintiff in error, that one of the jurors informed him during the progress of the trial, that he (the juror) had formed and expressed an opinion in the case, and was not a competent juror. Also, that he was taken by surprise by the court reopening the case, and permitting the defendant in error to prove the value of the goods. Also, the affidavit of E. P. Wetherby, one of the attorneys for plaintiff in error, stating in substance, that the defendant in error failed to prove the value of the goods claimed to be converted by the plaintiff in error, until after the conclusion of the arguments to the jury, and, that in consequence of such omission, which would be fatal to the defendant's case, he had failed to introduce testimony, showing that the defendant in error was not the owner of the goods in question, and the court, in granting the defendant in error leave to prove the value of the goods, restricted the plaintiff in error to testimony in regard to the value, and would not permit him to show that the defendant in error was not the owner of the goods. These affidavits are not denied.

The alleged errors will be taken up in the order of their assignment.

The first error assigned, “Irregularity in the proceedings of the court,” is too general to be of any avail. The motion should point out the irregularity complained of, so as to challenge the attention of the judge before whom the case was tried, to the act or acts complained of. McCartney v. M. P. R. R. 1 Neb. 404;Fargo v. Preston, 3 id. 447; Cropsey v. Wiggenhorn, 3 id. 447; Creighton v. Newton, 5 id. 100; Gibson v. Arnold, id. 186; Hosford v. Stone, 6 id. 378; Fox v. Meacham, id. 530; Brunswick v. McClag, 7 id. 137; Lowrie v. France, id. 192.

In Lowrie v. France, supra, the assignment was as follows: “Irregularity in the proceeding of the court, by which defendants were prevented from having a fair trial.” It was held, that this assignment was too indefinite to be of any avail. And the reason is, that exceptions and objections should present distinctly and specifically the ruling objected to, and not be a mere drag-net to enable counsel, on a subsequent critical examination, to raise points under the objections, which were not thought of or suggested at the time the motion for a new trial was heard and determined. A motion for a new trial is not a matter of form merely, but is designed as a means of correcting errors, which the ablest judge may commit in the hurry of a trial. Proceedings in error are designed to review only particular points of law, specially pointed out in the record, and vague, indefinite, or general exceptions will not, as a rule, be considered. Where, however, the errors complained of are apparent from the record, and it is clear that the attention of the trial court was challenged by the motion to the objections complained of, under general assignments of error, they will be considered by this court, but as no error is apparent under this assignment, it must be disregarded.

And the same is true of the second assignment. There was no abuse of discretion in receiving evidence, as to the value of the goods, after the case had been given to the jury. The court, in furtherance of justice, may permit such evidence to be given. Care, however, should be exercised by the court, in the admission of such evidence, to see that the rights of the parties are protected. No error, appears, therefore in the third assignment.

The fourth and fifth assignments may be considered together, and are open to the same objections as the first and second.

The sixth assignment is not sustained by the record, and the same may be said of the seventh and eighth.

As to the ninth assignment, the affidavit as to newly discovered...