Degrandchamp v. Slepski

STONE, J. The plaintiff sued the defendant in justice’s court to recover the sum of $285, which plaintiff alleged was due him as a commission on the sale of some real estate and personal property, made by his agent, for the defendant. The plaintiff recovered a judgment in justice’s court, and the defendant appealed. The defendant not appearing at the first trial in the circuit court, the plaintiff recovered a judgment. Upon a motion for a new trial the judgment was set aside and a new trial was granted. Upon the second trial in the circuit court, before a jury, the plaintiff had verdict and judgment for the amount of his claim, with interest. A motion for a new trial was made to set aside $us judgment for the reasons: [431] (1) That the verdict was against the weight of the' evidence. (2) That plaintiff’s attorney was permitted to read a certain affidavit of the defendant to the jury. (3) That counsel for plaintiff in his argument to the jury referred to the defendant as a “self-confessed perjurer,” and stated that “the truth was not in him.” The motion for a new trial was denied, and exception was taken to such denial and the reasons therefor.. The defendant has brought the case here upon writ of error, and the first three errors assigned are the same as those stated in the motion for a new trial. The fourth assignment of error is to the effect that the court erred in denying defendant’s motion for a new trial. An inspection of the record shows, not only that no exception was taken to the ruling of the trial court in permitting defendant’s affidavit to be read to the jury, but that such matter was withdrawn from the jury, and the court stated in their presence that the jury would not consider the matter. It further appears that no exception was taken to the argument of plaintiff’s counsel to the jury, and no ruling of the court appears in the record relating to the matter, except that in its charge the court instructed the jury not to consider that part of the argument. Neither of these questions is therefore before us. We again call attention to the rule that failure to except to the admission of evidence, or arguments of counsel, prevents a review of the questions on writ of error, notwithstanding a motion for a new trial on that ground. Conger v. Hall, 158 Mich. 447 (122 N. W. 1073); People v. Auerbach, 176 Mich. 23-50 (141 N. W. 869). The only assignments of error, therefore, which we can consider are those claiming that the verdict was against the weight of the evidence, and that the trial court erred in denying the motion for a new trial upon that ground. After a careful examination of the evidence, we cannot say that the verdict was against the [432] weight of the evidence. On the other hand, we are of opinion that there was ample evidence to support the verdict, that the case was properly submitted to the jury, and that the court did not err in denying the motion for a new trial. The judgment below is therefore affirmed. Brooke, C. J., and Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred. The late Justice McAlvay took no part in this decision.