Vannatta v. Duffy

Citation4 Ind.App. 168,30 N.E. 807
PartiesVANNATTA v. DUFFY.
Decision Date18 March 1892
CourtCourt of Appeals of Indiana

OPINION TEXT STARTS HERE

Appeal from circuit court, Benton county; A. W. REYNOLDS, Judge pro tem.

Action by William S. Vannatta against Michael Duffy. Judgment for defendant. Plaintiff appeals. Affirmed.

Fraser & Isham, for appellant. Walker & Gray, for appellee.

REINHARD, J.

The appellant sued the appellee in the court below on a promissory note. The appellee answered the general denial, payment, and a set-off for 15 tons of hay at $10 per ton. The appellant filed a reply, consisting of the general denial, payment, and a settlement as to the item of hay. The cause was tried by a jury, resulting in a verdict and judgment for the defendant, who is the appellee here. In the argument before the jury one of the counsel for the appellee used the following language: “If you give Mr. Vannatta judgment for one cent, Duffy, the sucker, will have to pay both lawyers.” Counsel for appellant interposed an objection to this statement, whereupon the court, in the presence of the jury, remarked: “Mr. -, that is not a proper argument.” Thereupon the appellee's counsel, immediately following the foregoing statement made by him, further said, in argument to the jury: “If you find that the note and interest there on amounts to two or three dollars more than the hay, then Duffy will have to pay all costs.” We take the following further proceedings from the record literally: “To which statement plaintiff's counsel objected and excepted. And the defendant's counsel, paying no attention to the objection, and not pausing in his argument, so that it might be determined by the court, proceeded with his argument, saying: ‘These objections are made for the purpose of confusing me. They are made to interrupt me.’ Then, turning to the court, counsel said: ‘Give them all the exceptions they want.” It must be confessed that the language regarding the costs and attorney's fees was, in view of the issues in the cause, out of place, and improper, and should have been checked by the court more effectually than it was. And yet we apprehend the appellant has not brought himself within the rule for saving the question so that it will avail for a reversal. No exception whatever was taken to any ruling or action of the court. The appellant should have pressed his objection upon the court, and insisted on a ruling, not only that the remarks were improper, but that they should be withdrawn by counsel and disregarded by the jury....

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