63 Neb. 397 | Neb. | 1901
This action was brought by Claus Oft against Peter Mangold to recover for an assault and battery alleged to have been committed on the former by the latter. The jury found for the plaintiff, and the court rendered a judgment accordingly. The defendant brings the record here for review on error.
A considerable portion of the defendant’s brief is devoted to discussion of alleged errors of the trial court in excluding evidence tending to show a justification of the assault. In our opinion, such evidence was properly excluded. The petition, so far as is material at present, is as follows: “That on the 8th day of October, 1897, the defendant assaulted and beat the plaintiff, and did then and there wrongfully knock the said plaintiff down, and did then and there, by such beating and knocking, break the plaintiff’s right leg at the ankle.” The defendant answered as follows: “Now comes Peter Mangold, and for answer to the petition of said plaintiff filed herein, denies each and every allegation in said petition contained, and, further answering said petition, alleges the facts to be that on or about the 8th day of October, 1897, .said plaintiff
After showing the amount of time lost by the plaintiff, because of his injuries, his attorneys propounded this
Just before resting his' case, the defendant produced three witnesses; and their testimony was objected to on the ground that they liad been present a portion of the time during the trial of the cause, in violation of a rule of the court excluding the witnesses on pain of their testimony being rejected, made on the motion of the defendant himself. The objection was sustained, and the exclusion of this testimony is assigned as error. As to one of these witnesses, the defendant in his offer disclosed no fact which he expected to prove by him. As to the other two, he made no showing that their presence in the court room during the trial was not with the knowledge, consent or connivance of himself or counsel. To predicate reversible error on a ruling of this kind, it must appear that the court-was apprised of the facts the party expected to prove by such witnesses, that such facts are material, and that their disobedience of the order of the court was without, the knowledge, consent or connivance of the party offering their testimony. The defendant did not bring himself within this rule; hence there is no reversible error in the ruling of the court in this regard. It is true, these facts
We recommend that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.