Carpenter v. Parker

23 Iowa 450 | Iowa | 1867

Dillon, J.

l appeal: to court. I. Defendants’ motion to dismiss the appeal must be overruled. The appeal was taken in time. The judgment was i’endered September 21, 1866. Appeal notices on both the clerk and the defendants were served in March, 1867, and the record filed in this court in October of the year last named.

2. practice: recordl'iost instrument. II. In disposing of the plaintiff’s appeal, we notice only those points which are insisted upon in the printed argument of his attorney. And first, it is claimed that the court erred in admitting in evidence for defendants, an order purporting to have been issued by Adjutant-General Baker, of the general character referred to in the statement. The bill of exceptions recites “ that an order was introduced in evidence in the words following: ”

But the clerk certifies “ that the order cannot be found among the files,” and it is not copied or set out. We do not know what it was. It is plain, therefore, that we cannot hold that the court erred in admitting it as evidence. This is one answer; and another is, that the record does not show that the plaintiff excepted to the ruling of the court allowing the reception of the order as testimony.

3. Evidence: mitigation. Again, if the order be as claimed in the appellant’s brief, while it might be conceded for the argument that it would not justify, that is, wholly excuse defendants’ alleged acts, it would, nevei’theless, be pi’oper as evidence to palliate such acts or to mitigate damages.

4. institocexcept?oí.eral III. It is xxext uxged that the court erred in its chaxge to the jury. The chaxge is lengthy, covering several pages. It is not, and cannot be claimed that it is, all erroneous. The exception was general, at the end of the chaxge, as follows: “ To the giving of which the plaintiff then and there and at the time, objected and excepted (to each and all instructions).” That this is not sufficient, will be seen by reference to the following cases decided by this court: Dav. Gaslight, etc., Co. v. City of Davenport, 13 Iowa, 229, 237; Id. 330, 336; Id. 532; Brown v. Jefferson Co., 16 Id. 339; Peck v. Hendershott, 14 Id. 40. This point is made and insisted upon by the appellee’s attorney. It is well taken, and we are not at liberty to disx-egard it. This result makes it unnecessary, if not improper, to enter upon an examination of the interesting questions of law discussed by the respective attorneys relative to. the powex’s of the Executive, the duty of obedience to executive orders, and how far they will in law operate to shield and protect those who act xxnder them.

Affixmxed.