Snyder v. Eldridge

31 Iowa 129 | Iowa | 1870

Miller, J.

l.practice: eiTors™ent°f — I. The appellant assigns three errors, two of which are presented in his argument. Only those presented will be considered. Shaw v. Brown, 13 Iowa, 508; Wilson v. Hillhouse, 14 id. 199.

a new trial-II. The first error urgea in argument is, that “the verdict is contrary to and not supported by sufficient evidence.” The only question of fact in issue was in respect to the execution of the note by defendants. The signatures to the note being denied under oath the burden of proving them devolved on the plaintiff. Nev. of 1860, § 2961, as amended by act of 9th Geni. Assem. ch. 28, § 2; 2 Greenl. Ev., § 163.

The evidence is conflicting, with a very strong preponderance in favor of the verdict. Where the evidence is conflicting, and the court below which heard the evidence, with full opportunity for observing the manner and appearance of the witnesses, has overruled appellant’s motion for a new trial on that ground, this court will not interfere. Devin v. Harris, 3 G. Greene, 186; Winfield v. The State, id. 339; Hall v. Hunter, 4 id. 539; Gordon v. Pitt, 3 Iowa, 385; State v. Elliott, 15 id. 72; Pilmer v. The Branch of State Bank, etc., 19 id. 112; Donaldson v. M. & M. R. Co., 18 id. 280; Havelick v. Havelick, id. 414; Brockman v. Berryhill, 16 id. 183.

tions to°in-’ III. The remaining error noticed in argument is, that “ the court misdirected the jury as to the law governing the case, in respect to the signatures to the note, as contained m its sixth instruction to the jury.

The record fails to show that any exception was taken to this instruction at the time. It is true the appellant, in his motion for a new trial, assigned the giving of this instruction as ground for a new trial, and he excepted to the overruling of his motion. This, however is not sufficient. An exception to an instruction given or refused must be taken, at the time. Rev., § 3106; Perkins v. Whittam et al., 14 Iowa, 596; Beasom v. Jonason, id. 399; Darrance v. Preston, 18 id. 396; Norton v. Swearengen, 19 id. 566, and cases there cited.

There having been no exception taken to the instruction at the time, there is no question presented thereon for our determination. The judgment of the court below is

Affirmed.