181 Iowa 482 | Iowa | 1917
“All objections or exceptions thereto must be made before the instructions are read to the jury and must point out the grounds thereof specifically and with reasonable exactness; but upon a showing in a motion for a new trial that an error in such instructions was not discovered by the party claiming the error at the time of trial, such objections or exceptions may be made in the same manner in such motion for a new trial and no other objection or exception to the instructions shall be considered by the Supreme Court on appeal.”
See Hanson v. City of Anamosa, 177 Iowa 101. The only showing attempted was in the motion for new trial, wherein defendant recited:
“That said instruction was objected and excepted to by this defendant at the time it was given, and is objected to and excepted to now for the above reason, that counsel failed to note these errors at the time said instructions were submitted to him; and further, that same is prejudicial to the substantial rights of this defendant.”
This statement follows the particular exceptions to or criticisms of each of the instructions complained of, and is found only in the motion for new trial. We infer that the objection and exception referred to as having-been taken at the time the instructions were given are those noted by the shorthand reporter under Section 3707 of the Code, for none are endorsed on the instructions given or filed with the clerk. They are to be found in the motion for new trial only. But the statute from which
“There is an obvious and material distinction between shoioing a fact and stating it. In the one case, satisfactory ■ proof may be required; in the other, the mere recital of the fact is sufficient.”
In order that an objection or exception to the instruction urged for the first time in the motion for new trial may be considered, the assertion that the error was not discovered at the time of the trial by the party claiming it, is not enough. There must be some showing that the assertion is true, — some proof thereof. This may be by affidavit, testimony in open court, or any other mode which will make it satisfactorily appear to the court that the error was overlooked at the trial of the cause to the jury. No attempt at any such showing was made, and for this reason alleged errors in the instructions may not be considered. The evidence was sufficient to carry to the jury the issue as to Avhether a partnership betAveen Courtney and
As no reversible error is discovered, the judgment is— Affirmed.