Acme Harvesting Machine Co. v. Brigham

Fawcett, J. Plaintiff brought this action in the district court for Custer county upon a promissory note. From a' verdict and judgment in favor of defendant, plaintiff appeals. Counsel for plaintiff state: “Appellant presents but one question for review. It is respectfully submitted that the trial court erred in giving instruction No. 5 of its own motion (Trans, p. TO), and which was duly excepted to at the time (Trans.' p. 13).” Page 10 of the transcript referred to shows the instruction as given by the court. Page 13 shoivs paragraph IT of the motion for a neiv trial, Avhich recites: “The court erred in giving instruction No. 5 given of its own motion duly excepted to by the plaintiff at the time.” Counsel for defendant contend that plaintiff cannot now raise an objection to instruction No. 5, for the reason that no exception was taken to this instruction at the time it was given, and no exception thereto Avas allowed by the court, and that the record will so shoAv. An examination of the record sustains defendant’s contention. So far as the record shoAvs, no objection was made, or exception noted, to instruction No. 5 until three days after the trial, Avhen it was made in the motion for [63] a new trial. Under the settled rule in this court, the instruction cannot now be reviewed. This has been the rule ever since Brown v. Hurst, 3 Neb. 353, where it was held: “Exceptions to charge must be taken at the time the charge is given.” In Smith v. Kennard, 54 Neb. 523, no exceptions were taken to the instructions given and refused by the court at the time of the trial, but exceptions were filed three days later. We held that it was too late. No error having been assigned which we are at liberty to consider, the judgment of the district court is Affirmed. Barnes, Rose and Sedgwick, JJ., not sitting.