Wiseman v. Ziegler

• Decision Date: 02 October 1894
• Citation: 41 Neb. 886,60 N.W. 320
• Parties: WISEMAN v. ZIEGLER.
• Court: Nebraska Supreme Court

41 Neb. 886

60 N.W. 320

WISEMAN

v.ZIEGLER.

Supreme Court of Nebraska.

Oct. 2, 1894.

Syllabus by the Court.

1. In an action to recover money, the jury returned a verdict in these words: “We, the jury, duly impaneled in the above-entitled cause, do find for the plaintiff, James C. Ziegler, and assess his damages in the sum of $38.59, and interest at 7 per cent.” Held sufficiently certain to sustain a judgment thereon for plaintiff for $38.59.

2. An exception is necessary to the review of alleged errors in giving and refusing instructions.

3. Error cannot be predicated for the refusing a request to charge where such instruction is not contained in the record brought to this court.

4. This court will not review the evidence, for the purpose of ascertaining whether it sustains the verdict, where the question is not specifically raised by the petition in error.

5. An objection to the ruling of the trial court on the admission and exclusion of evidence will not be considered unless the particular ruling complained of is pointed out in the assignments of error.

6. An assignment of error for the denial of a motion for a new trial is bad if it fails to specify to which of the several points made by the motion the assignment applies.

7. In order to a review of the proceedings of the trial court, the petition in error must assign alleged errors with such particularity as to enable the supreme court to determine the precise ruling of which complaint is made.

Error to district court, Cedar county; Norris, Judge.

Action by James C. Ziegler against Jenson Wiseman for goods sold and delivered. Judgment was rendered for plaintiff, and defendant brings error. Affirmed.Wilbur F. Bryant, for plaintiff in error.

Addison M. Gooding, for defendant in error.

NORVAL, C. J.

This was an action on an account brought by James C. Ziegler to recover the sum of $53.59, with interest thereon from March 30, 1889, for goods, wares and merchandise alleged to have been sold and delivered to the plaintiff in error. Upon the trial there was a verdict and judgment for the plaintiff. The defendant brings the record here for review by petition in error.

The first complaint in the brief of counsel is as to the form of the verdict. It is contended that it is uncertain in amount. The verdict, omitting title, reads as follows: “We, the jury, duly impaneled in the above-entitled cause, do find for the plaintiff, James C. Ziegler, and assess his damages in the sum of $38.59, and interest at 7 per cent. H. J. Huennekens, Foreman.” The defendant excepted to the form of the verdict before the discharge of the jury, whereupon the court instructed the jury that they should have computed the interest, and the foreman replied that they desired the clerk of the court to do that. To this the defendant objected. The plaintiff then waived the computation of interest, and accepted the verdict as returned; and, upon the overruling of defendant's motion for a new trial, the court rendered judgment against the defendant for the sum of $38.59, without adding interest. The trial court, when its attention was challenged to the form of the verdict, should, and, had the plaintiff not waived a computation of the interest, it doubtless would, have instructed the jury to return to their room and cast up the interest. It was their duty to have done so in the first instance. But this omission is, at most, a harmless irregularity, and is no ground for reversing the judgment, as the defendant was in no manner prejudiced. The verdict was sufficiently certain and specific as to amount to sustain the judgment thereon for the plaintiff for the sum of $38.59.

It is insisted that “the court erred in instructing the jury as requested in paragraph one of the requests of the defendant in error.” The record does not affirmatively show that ...