31 Iowa 289 | Iowa | 1871
1. It may be admitted, as is done by counsel for appellee, that the form of this interrogatory is objectionable; yet it does not follow that on that ground alone the judgment should be reversed. It perhaps rarely happens that a protracted trial is conducted without the occurrence of some purely technical error. If appellate courts should reverse for these, where no substantial prejudice has been done the complaining party, judicial investigations vrould be interminable, and a judgment in a party’s favor at nisi ■prinis would be but the commencement of his litigation.
The objectionable feature in this question is, not .that it suggests the answer, but that, emboying a material fact, it admits of an answer by a simple affirmation or negation. The record shows that the question was not so answered, so that the prejudice sought to be avoided by the rule inhibiting leading questions does not, in the present case, arise.
It further appears that the same witness subsequently testified to facts tending to show that the written agreement of the dissolution did form part of a settlement with McCreery and with plaintiffs.
It is stated in Greenleaf on Evidence, that “ when and under what circumstances a leading question may be put is a matter resting in the sound discretion of the court, and
Without deciding definitely that in no case will the permitting of a leading question constitute a ground for reversal, we are clearly of the opinion that, in this case, in view of the form of the answer and the subsequent testimony, no such substantial prejudice is shown as upon that ground to demand' a reversal.
2. The objection that this evidence is irrelevant and immaterial is not urged in the argument, and may, therefore, be regar-ded as waived.
III. The article of dissolution of the firm of McCreery,
Y. The defendants, in their amended answer, allege that plaintiffs released McCreery, the co-promisor of defendants, and thereby released them. It is claimed in the argument
YIII. The last alleged error is the overruling of the plaintiff’s motion for a new trial. The points raised have all been passed upon, except that the verdict is not sustained by sufficient evidence. The evidence was conflicting. It has been frequently held that, under such circumstances, this court will not disturb an order of the court below overruling a motion for a new trial, unless it presents a clear case of abuse of discretion. Vide McKay v. Thorington, 15 Iowa, 25; Brockman v. Berryhill, 16 id. 183; Pierce v. Walker, 23 id. 424; Smith & Co. v. McLecm, 24 id. 322; Booth & Graham v. Small and Small, 25 id. 177; Hull & Co. v. Alexander, 26 id. 570. Under the authority of these decisions our clear duty is to sustain this verdict.
.Affirmed.