Kirk v. Litterst

Adams, Ch. J. The plaintiff averred that be was a citizen and resident of Oass county. The defendant pleaded a general denial, except as to the ownership of a certain lot. Ho evidence of citizenship was offered. 1. practice on appeal : instruction not excepted to. I. The defendant assigns as error that the court erred in instructing the jury that the plaintiff was entitled to recover in the absence of testimony showing that the • plaintiff was a citizen of Cass county, Iowa, _ , . But the instruction does not appear to have been excepted to. We cannot review an instruction not excepted to. 2___submission to jury not excepted to. II. The defendant assigned as error that the court erred in submitting the cause to the jury upon the testimony adduced upon the trial, because there was no evidence sustaining the allegation of the plaint--g-,g pg^ition. that the plaintiff was a citizen of Cass county, Iowa. But the defendant did not at the time except to the action of the court in this respect. If the plaintiff had really failed to show himself entitled to recover, the defendant should, wé think, have moved the court to direct a verdict in his favor, or should have asked an instruction to that effect; and if the court overruled him he should have excepted. 3. practice : motion in arrest of judgement : office of. III. The defendant assigned as error that the court erred in refusing to sustain his motion in arrest of judgment, based upon a lack of proof of citizenship. If there was a lack of evidence to sustain the ver-' diet, the defendant’s remedy was to move for a new trial. lie in fact made such motion, and the court ruled upon the question of the sufficiency of the evidence in [73] ruling upon the motion for a new trial. A motion in arrest of judgment is provided where the facts stated in the petition do not entitle the plaintiff to any relief. Code, § 2650. We see no error in overruling the motion in arrest. 4. assignment of error : not sufficiently specific. IY. The defendant assigned as error that the court erred in overruling the defendant’s motion for a new trial. But the motion for a new trial was based upon eight grounds. The assignment is not sufficiently specific. It is manifest that, under such an assignment, as many different errors might be argued as there were stated grounds -for a new trial. Such an assignment has been repeatedly held to be defective. 5.--: judgment on verdict. Y. The defendant assigned as error that the court erred in entering a judgment against the defendant upon the verdiet in the absence of proof of the plaintiff’s . . .. . , , citizenship. But the entry oí judgment followed, of course, if the verdict was to stand. The error, if any, was in not granting a new trial on the ground of a lack of evidence; but, as we'have seen, such error was not specifically assigned. Some of the members of the court do not think that the allegation of the plaintiff’s citizenship was properly put in issue by a mere general denial. Possibly we should have reached an affirmance upon that ground, if we had thought it necessary to examine the question; but we did not so think. The judgment must be Affirmed.