Flower v. Nichols Bros.

Norval, J. Warren A. Flower, plaintiff in error, was plaintiff in tbe court below. In 1893 the defendants constructed an irrigating ditch or canal over and across his lands. Plaintiff insists that defendants entered upon his land without authority or permission from him so to do, while the defendants maintain that they had the right to construct said ditch, by reason of a contract entered into by them with plaintiff, through his duly authorized agent. This suit was instituted before a justice of the peace to recover damages for the alleged trespass, where defendants offered in writing to permit judgment to go against them in the sum of $27, which offer was rejected by plaintiff, and from the judgment there rendered . against him an appeal was prosecuted by plaintiff. A trial to a jury resulted in a verdict and judgment in his favor for $10, but all costs which accrued subsequent to the offer of compromise were taxed against him. The sixth and seventh paragraphs of the court’s charge to the jury' are assigned for error in this court. But they cannot be reviewed, because not separately assigned in the motion for a new trial. Six of the eleven instructions given by the court below on its own motion were grouped in a single paragraph in the motion for a new trial. Such an assignment is insufficient, under the-repeated decisions of this court, if one of the instructions included in such group was properly given. Errors [316] in instructions must be separately assigned in tbe motion for a new trial, as well as in tbe petition in error. (Kaufman v. Cooper, 46 Neb. 644; McCormal v. Redden, 46 Neb. 777; Graham v. Frazier, 49 Neb. 90; Johnston v. Milwaukee & Wyoming Investment Co., 49 Neb. 68; Union P. R. Co. v. Montgomery, 49 Neb. 429.) Tbe third instruction was one of tbe number embraced in tbe same assignment, wbicb stated “plaintiff denies that any consent was given or that any agreement was made by wbicb defendants were authorized to construct said ditch across said lands.” This portion of tbe charge was favorable to plaintiff, and manifestly tbe giving thereof is not reversible error. It follows that the sixth and seventh instructions cannot be reviewed. Tbe jury were instructed, at tbe request of defendants, that plaintiff had tbe right to tbe use of tbe water in tbe ditch or canal by paying to tbe owner thereof a just and reasonable compensation for such use. Plaintiff could not have been prejudiced by this instruction, as it could not have bad any influence with tbe jury, unfavorable to tbe plaintiff, in determining tbe amount of bis damages. Complaint is made of tbe admission of tbe testimony of certain designated witnesses for tbe defendants. These rulings were not assigned for error in tbe motion for a new trial. Said motion does not even contain tbe usual assignment of “errors of law occurring at tbe trial.” The only specification made in tbe motion for a new trial to tbe admission of tbe evidence relates solely to the allowing of tbe defendants to testify on certain subjects. No Complaint was made in tbe trial court, either generally or specifically, of tbe rulings on tbe admission of tbe testimony of any witness for tbe defense other than tbe defendants themselves. Tbe damages allowed by tbe jury are within tbe evidence, and tbe verdict cannot be disturbed for want of an assessment of adequate damages., It is finally argued that it was reversible error to assess [317] against plaintiff tlie costs accruing subsequent to the 'filing of the offer of compromise made by the defendant. Section 1004 of tlie Code of Civil Procedure is applicable to causes before justices of the peace, and is as follow's: “If the defendant, at any time before the trial, offer, in writing, to alloAV judgment to be taken against him for a specified sum, the plaintiff may immediately have judgment therefor, with the costs then accrued. But if he do not accept such offer before the trial, and fail to recover in the action a sum equal to the offer, he cannot recover costs accrued after the offer; but costs must be adjudged against him.” The record distinctly shows that prior to the trial before the justice the defendants offered in writing to permit plaintiff to take judgment against them for $27, which offer plaintiff declined to accept, and he only recovered in the district court the sum of $10 damages. Plaintiff having failed to recover a sum equal to the amount of defendants’ offer, he was not entitled to recover costs made subsequent to such offer, but the same were properly adjudged against him. (Elsanger v. Grovijohn, 29 Neb. 139.) It is. true it is not disclosed that the offer to allow judgment was renewed in the district court, but this was not necessary to make the provisions of said section 1004 available to the defendants. (Kleffel v. Bullock, 8 Neb. 336; Underhill v. Shea, 21 Neb. 154.) No reversible error appearing on the face of the record, the judgment of the district court is accordingly AFFIRMED.