86 N.W. 357 | N.D. | 1901
The plaintiff has brought this action for the recovery of damages against the defendant, alleging in the complaint that the plaintiff maliciously alienated the affections of defendant’s wife from him, and wrongfully deprived him of the comfort, society, and assistance of his wife, thus causing him great distress of mind and damages. The issues were tried before a jury, resulting in a verdict for the plaintiff for the sum of $1,000. This verdict was set aside by the Court upon a motion for a new trial upon the ground that one instruction given to the jury was prejudicially erroneous. The plaintiff has appealed from the order granting a new trial. Such appeal is sought to be sustained upon two specifications of error pertaining to the making of the order granting a new trial, viz.: That such instruction was not erroneous, but was a correct statement of the law applicable to that branch of the case; and, second, that such instruction was not excepted to by the defendant within the time fixed by the statute for so doing, and that the. Court had no authority, under the statute, to allow an exception, to the giving of the instruction to be taken and settled after the time allowed by the statute during which it may be done had elapsed. To enable us to be understood as to the last of these specifications of error, it will be necessary to narrate the facts that transpired in the case from the rendition of the v’erdict up to the granting of the motion for a new trial. Immediately after the rendition of the verdict, a stay was granted for 60 days for all purposes except for the entry of judgment. This stay was granted on June 23d. The charge, in writing, was filed with the clerk on June 30th. On July 15th there