Conner v. Fleshman

Maxwell, J. The first and second ground of error assigned is, that the court erred in not passing upon the demurrer to the declaration, and to each count thereof. The answer to this objection is, that the court acted on the demurrer and overruled it, and properly so, as the declaration and each count thereof is good. The third ground of error assigned is, that it was error to permit the mutilated instrument to be read to the jury as evidence, without first requiring the plaintiff to explain the alteration apparent on its face. The question as to whether the instrument had been mutilated, rvas for the jury, and not for the court, so that the paper was properly admitted to go to the jury. The fourth error assigned is alleged to be in allowing the copy of a supposed bond to be read to thejury, without any evidence of the loss or destruction of the original. The answer to this is, that no objection was made at the trial, when the copy was given in evidence. If objection had been made it was proper, under the circumstances disclosed in the bill of exceptions, to give the copy in evidence. The copy was not offered as evidence in place of the original, but along with it, as a circumstance, to enable the jury to determine whether the original had been altered or not. The fifth, sixth, and seventh causes of error assigned, are that the court erred in refusing to give the instructions asked for by the defendant, and in giving the instructions which were given. There was no objection or exception to the giving of the instructions which were given. [702] The defendant asked the court to give the jury eight or ten instructions, which were refused. Upon a careful examination of them, it is apparent that no one of them states the law arising on the evidence before the jury correctly; and the instructions given by the court go further, and are a little stronger in favor of the defendant than they should be. The eighth objection is, that a motion made for a new trial was overruled. This objection is disposed of by the simple statement, that the facts proved on the trial are not in the record. In the last place it is insisted, that it was error to enter judgment upon a verdict which did not find the sum due. The verdict of the jury found for the plaintiff the debt in the declaration mentioned, which was 600 dollars. The plaintiff released 400 dollars, and the judgment was for 200 dollars, the residue. This would seem to be a substantial compliance with the statute. But the judgment is for 200 dollars, with interest from the 24th day of August, 1866, when the verdict was rendered on the 24th day of June, 1870. This is not warranted by the Code, p. 627, § § 14, 16; but the error is one that can be corrected, on motion in the court below, according to section 6, chapter 184, of the Code, page 637, and can be corrected in this court, according to section six of the same chapter. The judgment should be corrected,here, so as to draw interest from the date of the verdict of the jury, June 24th, 1870, and affirmed with damages aud costs to the appellee. The other judges concurred. Judgment arfirmed.