Taylor v. Barnett

39 Colo. 469 | Colo. | 1907

Mr. Justice Goddard

delivered the opinion of the court:

The defendant having admitted the claim of plaintiff, the trial was confined to the issue presented by the counter-claim. Upon this issue, testimony was introduced on both sides. This evidence was conflicting, and under the well-settled rule, we must accept the verdict of the jury as conclusive as to the facts. •

Error is assigned upon (1) the instructions as given by the court; and (2) its refusal to instruct as requested by defendant.

1. The objection presented by the assignment of errors predicated upon the instructions given is not properly before us for consideration, since no objection to giving the same was made in the court below, and no exception taken or preserved in the record.— Bourke v. Van Keuren, 20 Colo. 95; Gilpin v. Gilpin, 12 Colo. 504.

2. So far as the record discloses, no instructions on behalf of the defendant were properly presented. Section 187, Civil Code, provides that, if either party “desires special instructions to be given to the jury, such instruction shall be reduced to writing', numbered and signed by the party, or his attorney, asking the same, and delivered to the court. ’ ’

In Hamill v. Hall, 4 Colo. App. 290, speaking of this provision, the court said: “The statute * * # is no doubt mandatory as to the course to be pursued in regard to instructions presented, but it could hardly be considered mandatory to the extent of making it obligatory upon the court to instruct as to the law of the case, when no instructions were asked and no question of the law involved.”

No attempted compliance with this provision is shown. We are not even advised as to what rule of law the defendant desired the court to announce.

Counsel urge in argument the further objection that the jury made no express finding in its verdict upon the counter-claim. Suffice it to say that this objection was not made at the time of the rendition of the verdict, nor was there any exception taken to the verdict as rendered.

The record presents no reviewable error that would justify a reversal. The judgment will, therefore, be affirmed. Affirmed.

Chief Justice Steele and Mr. Justice Bailey concur.