6 S.D. 392 | S.D. | 1894
In the circuit court for Fall River county, upon trial before a jury, judgment was rendered in favor of respondents against appellant, who appeals from the same. Error is assigned as follows: “(1) The court erred in admitting the evidence of William H. Woodward as to the value of legal services sued for, the said evidence being incompetent. (2) The court erred in failing to reduce his instructions to writing, and in failing to send said instructions, so reduced to writing, to the jury on their retirement. (3) The court erred in failing to instruct the jury that the burden of proof rested upon the plaintiff. (4) The court erred in refusing to grant a new trial on newly-discovered evidence, as set forth in the affidavits in support of a motion for a new trial herein. (5) The verdict is not sustained by the evidence, and is against the clear preponderence of the evidence.”
The second error assigned is that “the court erred in failing to reduce his instructions to writing, and in failing to send such instructions, so reduced to writing, to the jury on their retirement.” The abstract shows that the instructions were given orally, and as given were taken down by the official stenographer, and that no objection was made by either party then or subsequently. Under such circumstances the trial court had a right to understand that both parties were satisfied with this method, and waived a strict 'pursuance of the. statute, if this
It is next assigned as error that the court failed to instruct the jury that the burden of proof rested upon the plaintiff. There is no record here showing error in this respect. No request was made for such an instruction, and if the court inadvertantly omitted it the defendant should, either by request for such instruction, or exception to the charge on account of .such omission, have called the attention of the court to it. The failure of the judge to charge upon any material point usually results from inadvertence, and the law. casts upon the parties the duty of calling the judge’s attention to the matter. If he then refuse to give a proper requested instruction, such refusal is ground of error; but a party cannot in a court óf error; avail himself of an omission which he made no effort to have supplied at the time. Haynes, New Trials & App. § 120; 2 Am. & Eng. Enc. Law, p. 258, where a large number of cases are cited in support. ' .
The fourth assignment of error is refusing a new trial on the ground of newly discovered evidence. The application on this ground was addressed to the sound discretion of the trial court, and the action of that court will not be disturbed, except for an abuse of such discretion; the presumption being that the
The remaining assignment is that the verdict is not sustained "by the evidence. This alleged error was not made a ground upon which a new trial was asked, nor does there anywhere in the record appear any specification of the particulars in which the evidence is so claimed to be insufficient, as required by sections 5090, 5094, Comp. Laws. Upon such a record, such assignment is not available to appellant.
We find no error in the record, and the judgment is affirmed.