33 Neb. 847 | Neb. | 1892
This was an action brought in the district court of Dodge county by defendant in error under the provisions of sec
The first contention in plaintiff’s brief is that the two causes of action cannot be joined under the Code, and that the district court erred in overruling a demurrer to the petition on that ground. A careful inspection of the record discloses the fact that no objection was made to the second amended petition on that ground. It is true a demurrer was interposed to the original petition, which was sustained, and also to the first amended petition, which was overruled. Subsequently, however, plaintiff in error filed its motion to require the plaintiff below to make his said petition more specific, which motion was sustained, and leave given to file an amended petition within thirty days. To this second amended petition plaintiff in error filed a motion for a more specific statement, which was overruled. It then filed its answer without further objection. The district court had jurisdiction of both causes of action and we must presume that plaintiff in error was satisfied to have them joined. This court will not notice alleged errors to which no exception was taken in the trial court. (Pettit v. Black, 13 Neb., 142; Dutcher v. State, 16 Id., 30; Warrick v. Rounds, 17 Id., 411.)
The plaintiff in error requested the following instruction: “The jury are instructed that when the transfer of a negotiable promissory note in the usual course of business for a valuable consideration is proved, the law presumes that such transfer was for a lawful purpose, and such presumption cannot be overcome without positive and clear evidence,” which request was refused, and of that ruling it now complains. In this connection it should be
The trial court, upon refusing the request of plaintiff in error, instructed the jury to the effect that the burden was upon the defendant below to prove that the sale and transfer of the note in question was in good faith, and that said note was, at the time of payment thereof, the property of the First National Bank of Schuyler. On this branch of the case the only question was the ownership of the note, since the proof of usury is clear; in fact, it is not seriously controverted. Had the Schuyler bank been the plaintiff seeking to recover on the note, a different question would have been presented. In that case the presumption of good faith would have been available in its favor until proof of usury, but no longer. (Lincoln National Bank v. Davis, 25 Neb., 381.) The trial court, in the instruction given, clearly recognized the right of plaintiff in error to evade the penalty of usury by selling and disposing of the note in good fait'h. It also held, and rightly, we think, that
The district court, on its own motion, gave the following instruction: “You are instructed, as a matter of law, that payments made, generally, upon a usurious loan are not to be taken as payments upon the usury of the loan, so that if you should find from the evidence and under the instructions given you that payments were made on the loan to defendant generally, and that said loan was usurious, then and in such an event you cannot consider such payments as payments of the usury alone, unless you further find from the evidence that plaintiff expressly agreed or assented that such payments were to be payments of the usury.” Plaintiff in error .requested an instruction to the effect that payment, in the absence of any understanding or direction to the contrary, will be presumed to be a payment, first, of the interest, and the balance, if any, to be applied upon the principal debt. To the giving of the one and the refusal of the other plaintiff in error now complains. The instruction given eorrectly states the law, and there is no error in the ruling complained of. (Knox v. Williams, 24 Neb., 630.)
Complaint is made of the refusal to give the following instruction: “If the jury find that a witness has deliberately sworn falsely as to any material fact in the case, it is the right of the jury to disregard all the statements of such witness, except such statements are corroborated by other good and respectable witnesses.” The refusal to give this
Plaintiff in error requested the court to submit to the jury certain special findings, which request was refused. In Floaten v. Ferrell, 24 Neb., 347, it was held to be within the discretion of the trial court to submit or refuse special findings. The findings, seven in nnmber, were properly refused. Section 292 of the Code provides that a special verdict must present the facts as established by the evidence, and not the evidence to prove them, and they must be so presented as that nothing remains to the court but to draw from them conclusions of law. If the jury had, in response to the several questions, given the most favorable answers of which they were susceptible, in favor of the plaintiff in error,'still they would in no sense have been decisive of the case. The general verdict might still have been sustained. There was no error in the refusal of the court to submit them. 0
Finally, it was alleged that the court erred in allowing one of the witnesses for the plaintiff below to testify to the amount due on a certain note. There seems to be no doubt that the calculation of the witness was correct, and that the jury.should have calculated it in the same manner and with the same result. Plaintiff in error cannot complain of a ruling which is not prejudicial. The judgmentis
Affirmed.