Ellis v. Central Pacific Railroad

5 Nev. 255 | Nev. | 1869

By the Court,

Whitman, J.:

This appeal is from an order of the District Court of the Third Judicial District, granting respondent, defendant in the Court below, a new trial. The ground upon whioh the order is based, is error in the instructions given by the Court, on its own motion, to the jury. •

The charge, set forth in the statement, is certainly at variance with the rule touching the liabilities of corporations upon contracts, as held by this Court, in Rankin v. New England and Nevada Company, (4 Nev. 78) and The Yellow Jacket Silver Mining Company v. Stevenson, (ante, 224). The views expressed in those opinions sufficiently elucidate the present case, and need not be here repeated.

It is, however, objected that the specification of error in the statement on motion for a new trial was insufficient to warrant its consideration by the Court. It was held in Corbett v. Job et al., (ante, 201) that the statute regulating statements on appeal must be complied with, or the statement must be disregarded: so, with motions for a new trial. The statute provides :

“When the notice designates, as the ground of the motion, error in law occurring at the trial and excepted to by the moving party, the statement shall specify the particular errors upon which'the party will rely.” “ If no such specifications be made, the statement shall be disregarded.”

The notice in this case, among other grounds, designates the following : “Eor error of law in giving instructions to the jury, which were objected to by defendant, and exceptions duly then and there taken.” The attempted specification is: “ Eor that the Court erred in giving to the jury instructions as set out in this statement.” It would have been better to have used the word “ charge,” instead of “instructions,” as the statement shows a continuous charge, without subdivisions — through which a thread of errors runs, as noticed by the District Judge, in his opinion, on granting the motion for a new trial.

Under such a state of facts, the specification was a compliance with the statute: as the charge presented in the statement is an entirety — a single instruction as it were — and as such erroneous. The specification, then, being sufficient, and no abuse of discretion appearing in granting a new trial upon the ground referred to, and for the reasons given by the District Judge, the order of the Court is affirmed, and the cause remanded.

It is so ordered.