Hopkins v. Kitts

ME. JUSTICE HOLLOWAY delivered the opinion of the court. This is an appeal from an order of the district court of Fergus county denying the plaintiffs’ motion for a new trial. There is also an attempted appeal from the judgment, made and entered on April 17, 1907; but since this ease was tried in the district court on appeal from a justice of the peace court and the appeal was not taken to this court within ninety days after entry of judgment in the district court, this court does not acquire jurisdiction of the appeal from the judgment, and that attempted appeal is dismissed. (Code Civ. Proe., sec. 1723, as amended by Act of the Sixth Legislative Assembly, Laws 1899, p.-147.) This question being one of jurisdiction, it could be raised at any time, and the failure of counsel for respondent to [28] give sufficient notice of their motion to dismiss is of no consequence. However, all questions raised, which could have been presented on either or both of the appeals, may be presented on the appeal from the order denying a new trial. There are five specifications of error, but the first, fourth and fifth raise the same question, namely, the insufficiency of the evidence to sustain the verdict. It is also said that the jury must have taken into consideration a payment of $1.75, alleged to have been made by the defendant, but consideration of which was withdrawn from the jury by the court in its instructions. The evidence is conflicting, but if we exclude from consideration the $1.75, and credit the several payments as of the proper dates, the plaintiffs could not have recovered more than seventy-six cents, and upon an appeal to this court in a case involving so-small an amount, we will apply the maxim, Be minimis non curat lex. The third assignment relates to errors in law occurring at the trial. Exception is taken to certain remarks made by the court-during the trial. While these do not constitute errors in law, within the meaning of subdivision 7 of section 1171 of the Code-of Civil-Procedure, but, if errors at all, fall within subdivision 1 of that section, still we may overlook this, and consider the alleged errors as if properly specified. At the conclusion of defendant’s testimony the plaintiffs interposed a motion for a directed verdict. This motion was properly overruled. The court made certain observations as to the state of the case at that time. Considered from a strictly legal standpoint, these remarks were applicable to the case then made but, in any event, the plaintiffs proceeded to introduce rebuttal evidence, and upon the conclusion of the testimony the disputed questions were fairly submitted to the jury, and a verdict returned in favor of the defendant. The appeal from the judgment is dismissed. The order of the district court refusing the plaintiffs a new trial is affirmed. Affirmed. Mr. Chief Justice Bbantly and Me. Justice Smith concur.