Martinson v. State Bank

Per Curiam. This cause was submitted to the jury by the instructions of the trial court in harmony with the theory of plaintiff’s cause of action as alleged and set forth' in the complaint, namely, that plaintiff’s right to recover depended upon the question of negligence on the part of defendants, and such submission was acquiesced in by plaintiff. No exceptions were taken to the charge at the trial, or suggestion otherwise made that the court proceeded upon an erroneous theory of the law. In such case an exception taken in the motion for a new trial is too late. Steinbauer v. Stone, 85 Minn. 274, 88 N. W. 754. The claim that the court erred in excluding certain evidence is not presented by an assignment of error in this court. The assignment in the motion for a new trial, not being renewed here, is insufficient. Order affirmed.