Yates v. Kinney

• Decision Date: 13 December 1888
• Citation: 25 Neb. 120,41 N.W. 128
• Parties: YATES v. KINNEY.
• Court: Nebraska Supreme Court

25 Neb. 120

41 N.W. 128

YATES

v.KINNEY.

Supreme Court of Nebraska.

Dec. 13, 1888.

Syllabus by the Court.

1. Errors in the refusal of testimony on a trial will be considered as waived, unless complaint thereof be made in a motion for a new trial. See Railway Co. v. McCartney, 1 Neb. 398.

2. Where a question is asked a witness, to which objection is made, which is sustained, the party desiring the evidence must offer to prove the facts sought to be introduced in evidence. Mathews v. State, 19 Neb. 330, 27 N. W. Rep. 234.

Error to district court, Fillmore county; MORRIS, Judge.

Action for malicious prosecution by Martin E. Kinney against William J. Yates. Judgment for plaintiff, and defendant brings error.O. P. Mason and Charles E. Magoon, for plaintiff in error.

John P. Maule, for defendant in error.

COBB, J.

This was an action for malicious prosecution. It was originally brought by Martin E. Kinney, plaintiff, against William J. Yates, E. M. Billings, and Frederick B. Donisthorpe, defendants. The alleged cause of action was that Yates, aided, abetted, and counseled by Billings and Donisthorpe, maliciously and without probable cause made complaint against and prosecuted the plaintiff for the crime of petit larceny, in stealing two loads of corn from the said Yates, of the value of $12.50. The defendant Yates answered the petition, denying malice, and the want of probable cause in the prosecution of the plaintiff by him, and alleging that prior to the commencement of said prosecution he went to E. M. Billings and Frederick B. Donisthorpe, who are practicing attorneys of said court, etc., and made a full statement to them of all the facts connected with said larceny case, so far as he had any knowledge thereof, etc.; that said attorneys, knowing all the facts in the case, etc., advised the answering defendant to commence said prosecution, whereupon, acting upon the advice of his said attorneys, and in good faith, and without malice and for the sole purpose of having the supposed criminal brought to justice, he made said complaint, etc. The cause was dismissed as to Billings and Donisthorpe, and proceeded to trial as to the defendant Yates. The trial was to a jury, which found for the plaintiff, in the sum of $200. The defendant's motion for a new trial being overruled, the cause is brought by him to this court on error, and he assigns the following errors: (1) The court erred in overruling the motion for a new trial; (2) the damages given by the jury are excessive; (3) the verdict given herein is contrary to the evidence; (4) the verdict is contrary to law; (5) the court erred in its charge to the jury; (6) the court erred in charging the jury that they must find for the plaintiff; (7) the court erred in holding the defendant William J. Yates to trial in this case after having allowed the plaintiff to dismiss as to his co-defendants, Billings and Donisthorpe. This cause was before this court at a former term on the motions of the defendant in error, one being to strike out the bill of exceptions from the record, and the other to strike from the bill of exceptions the part thereof purporting to be the instructions of the court to the jury. The first of said motions was overruled, and the second one sustained. See case reported in 37 N. W. Rep. 590.

I will take up and examine such of the errors as are presented by the record in its present condition, and argued by counsel in the brief. The first error argued in the brief is that the court erred in ruling out and refusing to receive or allow to go to the jury, certain evidence in the testimony of the plaintiff in error, defendant in the court below, when on the stand as a witness in his own behalf. This error cannot be considered, for the reason that the attention of the trial court was not called to it by the motion for a new trial. It has been often held by this court that to enable it to reverse a judgment for error of law occurring at the trial the attention of the court must have been called to it and given an opportunity to correct such error by granting a new trial. To this effect is the holding of this court in the case of Railroad Co. v. McCartney, 1 Neb. 405, which holding has been followed in 31 cases in our Reports, not counting those which probably might be found in the last six volumes. The statute has gone far to relieve parties of a possible hardship imposed by said rule, in providing that a general reference to such errors in a motion for a new trial will be sufficient, but here there is not the most general or remote reference to such error, in the motion for a new trial.

Again, it will be observed by examining the testimony quoted that there was no offer of evidence. In the case of Mathews v. State, 19 Neb. 330, 27 N. W. Rep. 234, the then Chief Justice MAXWELL, delivering the opinion of the court, thus stated the law. I quote from the syllabus: “Where a question is asked a witness, to which objection is made, which is sustained, the party desiring the evidence must offer to prove the facts sought to be introduced in evidence.” This case was followed by those of Lipscomb v. Lyon, 19 Neb. 522, 27 N. W. Rep. 731, and Masters v. Marsh, 19 Neb. 462, 27 N. W. Rep. 438. But were this not so, and were we at liberty to consider the evidence referred to the same as though it had been presented in the motion for a new trial, and there had been a proper offer of evidence, and its refusal, I do not think that reversible error would be found in it. I copy that part of the evidence referred to in the brief of plaintiff in error, from the bill of exceptions; the plaintiff in error being on the stand as a witness in his own behalf, and being examined in chief:

“ Question. State what you did in relation to having these parties arrested. Answer. I saw Mr. Billings at his office, and told him.” The plaintiff objects to the statement of the witness as to what Mr. Billings told him, for the reason that it is immaterial,...