Lambert v. McFarland

7 Nev. 159 | Nev. | 1871

By the Court,

Garber, J.:

There was no error in refusing to send the jury back with directions to find more specific answers to special interrogatories. If the appellants desired a written finding upon particular questions of fact, they should have requested the court to instruct the jury to bring in a written finding upon such questions, and such instruction should be asked for before the jury retired. The record does not show that the court, of its own motion, so instructed. The instruction was to find a general verdict, and the particular questions of fact were alluded to as necessary to be first determined, in order to arrive at the proper general verdict. Where special findings are asked for in due time, the court should, if they are properly framed, always submit them to the jury. In this way, the expense and' delay of a second trial may often be avoided, and by this practice the law is much moré effectually separated from the fact, than by giving hypothetical instructions.

The depositions were properly admitted. It is not necessary to state in the affidavit that service of summons has been had. This fact can be as well, or better, known by an inspection of the record; and a fair construction of the language of the statute shows that it was not intended to require it to be set forth in the affidavit. Four cases are mentioned in which testimony may be taken by deposition. Even in those cases, it is true, the deposition cannot be taken prior to service of summons, etc. But the statute only requires the affidavit to show that the case is one of those mentioned — not that the action has progressed to that stage in which a deposition may be taken in the cases mentioned.

The other assignments depend upon the alleged insufficiency of the evidence. We cannot consider them, in the absence of any showing that all the testimony is before us. The judgment and order appealed from are affirmed.