Wood v. Whitton

• Decision Date: 13 June 1884
• Citation: 19 N.W. 907,66 Iowa 295
• Parties: WOOD v. WHITTON
• Court: Iowa Supreme Court

19 N.W. 907

66 Iowa 295

WOOD v. WHITTON

Supreme Court of Iowa, Des Moines

June 13, 1884

THURSDAY JUNE 4.

Appeal from Floyd Circuit Court.

ACTION at law to recover upon an agreement to repay to plaintiff certain moneys by him paid upon a contract to purchase lands which, by the agreement, was canceled. There was a judgment upon a verdict for plaintiff. Defendant appeals.

AFFIRMED.

Starr & Harrison, for appellant.

Ellis & Ellis, for appellee.

OPINION

BECK, J.

I.

The first four points discussed in the argument of defendant's counsel are based upon the ground that the verdict ought to have been set aside by the court below for the reason that it is in conflict with the evidence. But the decision of the circuit court overruling a motion for a new trial based upon the ground, among others, that the verdict is contrary to the evidence, is not assigned as error, nor, indeed, is the objection made in any other manner in the assignments of error. It is a familiar rule prevailing here that we will not consider objections which are not made in the assignments of error. We cannot, therefore, inquire whether the verdict is sufficiently supported by the evidence.

II. The defendant's assignment of error is in the following language:

"And the appellant herein says there is manifest error on the face of the record in this:

"1. The court erred in overruling defendant's motion to strike amended reply.

"2. The court erred in overruling defendant's motion to strike supplemental petition.

"3. The court erred in overruling defendant's objections to evidence, as shown by the bill of exceptions.

"4. The court erred in sustaining plaintiff's objections to testimony, as shown by bill of exceptions.

"5. The court erred in overruling defendant's motion to strike out parts of the testimony of plaintiff, as shown by the bill of exceptions.

"6. The court erred in allowing plaintiff to state conversations with Scott and Johnson, or either of them, as to the title to land and possession of land.

"7. The court erred in overruling defendant's objection to introduction of letter exhibit 'L.'

"8. The court erred in overruling defendant's motion to strike out plaintiff's evidence as to incumbrances on said real estate.

"9. The court erred in overruling defendant's objections to introduction of communications and letters between defendant and D. A. Scott and each of same.

"10. The court erred in admitting in evidence over defendants objection exhibit 'W.'

"11. The court erred in giving his charge to the jury, and in giving each division thereof.

"12. The court erred in giving the tenth, eleventh and twelfth divisions of charge and each one thereof.

"13. The court erred in not fully instructing the jury as shown in motion for new trial."

III. The objections made in the first, second, fifth, eighth, ninth and tenth assignments of error are not discussed by counsel; we cannot, therefore, under the rules of reported decisions of this court, consider them.

IV. "An assignment of error * * * must, in a way as specific as the case will allow, point out the very error objected to." Code, § 3207. Each of the other assignments after the first and second, and excepting the twelfth, violates this statute. It cannot be said of one of them that it plainly and specifically points out an error. The third, fourth, fifth, eleventh and thirteenth, either directly refer to the contents of the record for direction and information as to what matters are complained of, or these matters cannot be understood without such reference. An assignment should plainly state the error complained of and not refer the opposite counsel and the court to parts of, the record wherein the objection complained of is said to appear. The assignments just mentioned fail to point out the errors therein complained of, and cannot, therefore, be considered by us. Our conclusion is supported by decisions found in almost every volume of our reports. Among them are the following: Wilson v. Klokenteger et al., 56 Iowa 764, 9 N.W. 346; Low et al. v. Fox, 56 Iowa 221; Hoefer v. City of Burlington, 59 Iowa 281; McCormick v. Chicago, R. I. & P. R'y Co., 47 Iowa 345; Morris v. Chicago, B. & Q. R'y Co., 45 Iowa 29; Stevens v. Brown, 60 Iowa 403; Marsel v. Bowman, 62 Iowa 57; Garrett v. Wells, 63 Iowa 256.

V. Defendant complains, in his argument, of the refusal of the court to give certain instructions asked by him, and the modification of one given at his request. But the assignment of errors does not present these objections. We can consider no question not raised by the assignment of error.

VI. The plaintiff claimed, in this action, that the title of the land which he had contracted to purchase of defendant was defective, or that there were incumbrances upon it. He was permitted to testify, against defendant's objection, that he had informed Scott and Johnson that there was a cloud upon defendant's title. The ground of defendant's objection was that it did not appear that these parties were agents of defendant at the time as to matters pertaining to the transaction. The objection is renewed in the sixth assignment of error. But there was evidence tending to prove their agency. The evidence could not have been properly rejected by the court at the time the objection was made, on the ground that their agency was not fully established.

VII. The letter referred to in the seventh assignment of error was addressed by defendant to Johnson, and was objected to on the ground that it was "incompetent, immaterial, and a communication from defendant to a third party." We think it was properly admitted, as it tended to show that Johnson, one of the persons referred to in the preceding point, was agent of defendant.

As we understand the abstract and argument of defendants, other rulings upon the admission of evidence, complained of by counsel in the argument are not referred to in the assignments of error. They cannot, therefore, be now considered.

VIII. The twelfth assignment of error assails the tenth, eleventh and twelfth instructions. The twelfth is considered in the argument of defendant in connection with the thirteenth, fourteenth and fifteenth, upon which error is not assigned. These we cannot consider, and must confine our attention to the instructions specified in the assignments of error. We do not understand that defendant objects in his argument to the tenth and eleventh instructions.

The twelfth instruction, we think, correctly states that certain letters passing between the parties were a proposition and acceptance constituting the contract upon which plaintiff recovers in this case. The instruction, in our opinion, correctly states the terms of the contract.

We have passed upon and considered all the alleged errors assigned by defendant. We discover no ground for disturbing the judgment of the circuit court.

AFFIRMED.

ON REHEARING.

BECK CH. J.

I. A rehearing was allowed in this case upon petition of defendant, and the cause, after another argument, has been again submitted. In the former opinion, through mistake, the last three assignments of error were not set out. Because of this mistake the rehearing was granted. These assignments of error are as follows: "(14) The court erred in overruling defendant's motion for a new trial. (15) The court erred in refusing to give to the jury the first, second, third one-half, fourth, fifth, sixth, ninth, eleventh, thirteenth, fourteenth, fifteenth, sixteenth and seventeenth instructions asked by defendant, and each one thereof. (16) The court erred in modifying the third instruction asked by defendant and in giving same." The fourteenth is not sufficiently specific to comply with Code, § 3207, cited in the original opinion, which, in addition to the language there quoted, declares, touching an assignment of error, that, "among several points in a demurrer, or in a motion, or instruction, or rulings in an exception, it must designate which is relied upon as error, and the court will only regard errors which are assigned with the required exactness."

There were eighteen special grounds assigned by the motion for a new trial, each presenting different questions of law. The fourteenth assignment assails all these grounds, without specifying any particular error. This manner of assigning errors is forbidden by the section of the Code above cited. In addition to the cases above cited, see Oschner v. Schunk, 46 Iowa 293; Hawes v. Twogood, 12 Iowa 582; Todd v. Branner, 30 Iowa 439.

II. The fifth point of the foregoing opinion is incorrect in stating that there were no assignments of error assailing the rulings of the court in refusing the instructions asked by defendant and in modifying the third instruction asked by defendants and in refusing the others. This conclusion resulted from the mistake above stated in overlooking the fifteenth and sixteenth assignments of error. The fifteenth assignment of errors, under Sherwood v....