31 Iowa 129 | Iowa | 1870
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.
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
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.