Haldane v. Town of Arcadia

70 Iowa 462 | Iowa | 1886

Lead Opinion

RothbocK, JT.

I. Defendant assigns as error the action of the court in overruling, in two instances, objections made i. practice on appeal: arguecinotl waived. by defendant to plaintiff’s evidence. These auegea errors are not argued; counsel for defendant contenting himself with copying, in his printed argument, these assignments of errors, without a word of comment or argument. Errors assigned which are not argued are regarded as waived, and receive no attention from the court.

II. It is insisted that the district court erred in over*463ruling defendant’s motion for a new trial, on the ground that 2. __: evi-porfverdicN' the verdict is in conflict with the evidence. But it is not claimed that the verdict is wholly without the support of the evidence. It is insisted only that it is against the weight of the evidence. If this be true, we cannot, under familiar rules recognized here, disturb the verdict on this ground.

III. The jury returned a verdict for $150. Plaintiff claimed in the petition $450. The court instructed the jury, 3. pkocbd-ooíutanT ar .jury bound by instructions, in effect, that the only issue in the case involved the question of the settlement of plaintiff’s , claim; that the services of plaintiff, and the value thereof, as charged in the petition, were not denied in the answer; and that plaintiff should be allowed the amount of his claim, unless the jury should find the settlement pleaded. These instructions were not excepted to in the court below, and are not complained of in this court. The plaintiff' moved the court to render judgment for the full amount of the claim. The motion was sustained, over the defendant’s objection, and complaint is now made of this ruling.

"We think the motion should have been overruled. It is true that the court, in effect, directed the jury that, if they found for the plaintiff, he was entitled to recover the amount of his claim, and the defendant did not except to the instructions. So far in the progress of the investigation the instructions should be regarded as the law of the case. The rule of the instructions was wrong, because the allegation of the value of the services rendered by the plaintiff was not admitted by a failure to controvert it. Code, § 2712. The abstract upon which the cause is presented to us does not show that the petition was verified, and the account for services cannot be taken as true and ádmitted by a failure to controvert it, as is provided by section one of chapter thirty-six of the Acts of the Sixteenth General Assembly. It was therefore incumbent on the plaintiff to prove the value of the legal services involved in the action.

*464It is evident that the jury based their verdict upon what they regarded as the value of the plaintiff’s claim. In adopting this rule, they determined the case properly under the issues; and, although the instructions to the jury were the law of the case, the rule, being erroneous, should not have been adhered to when the defendant objected to the motion made by the plaintiff to disregard the verdict of the jury, and render a judgment for the full amount claimed. The court should have then departed from the rule of the instructions, and either granted a new trial, or rendered judgment for the amount of the verdict.

The judgment will be reversed, and the cause remanded for a new trial.

BEVERSED.





Dissenting Opinion

Beoe, J\,

dissenting. — In my opinion, the instructions given by the court below must be. regarded as the law of the case; and, as no exceptions were taken to them, they cannot be questioned or assailed in this court, and, indeed, that is not attempted. The services of plaintiff, and the value thereof, are to be regarded as admitted by defendant. The district court submitted no other issue to the jury than the one involving the settlement pleaded by defendant, and, in effect directed the jury that, if they found for plaintiff upon that issue the plaintiff is entitled to recover the amount of his claim. No issue was submitted to the jury involving the amount which plaintiff should recover. That was settled by the admissions of the pleadings, as held by the instructions of the district court, and therefore required determination by neither court nor jury. That part of the verdict finding the amount of recovery is mere surplusage, for there was nothing in the case, under the instructions of the court, requiring or permitting it. The court, therefore, properly disregarded it, and correctly entered judgment for the amount due plaintiff, as shown by the admissions of the pleadings.

In my opinion, the judgment of the district court ought to be affirmed.