Nelson v. Brixen

ANDERSON, J.: Plaintiff held a contract with J. W., C. H., and S. J. Jenkins for the purchase from them by plaintiff of certain real estate. He sold and assigned the contract to the defendant for $1,200, of which $500 was paid down, and the balance of $700 was to be paid in a short time, and, failing to do so, this action is brought to recover the same. The defendant, by his answer, alleged fraud in the sale to him of the contract, and denied any indebtedness to the plaintiff, and sought to recover back the $500 already paid to plaintiff. There was a trial to a jury, and a verdict and judgment for plaintiff for $746.66 and costs. The defendant gave notice of his intention to move for a new trial on account of errors of law occurring at the trial, and on account of newly-discovered evidence, and that the motion would be made upon affidavit and a statement of the case. The court overruled the motion for a new trial, and the defendant brings this appeal from the order overruling this motion and from the judgment. The matter contained in the motion for a new trial on the ground of newly-discovered: evidence was not incorporated in any bill of exceptions-nor statement of the case, and, although printed in the abstract, cannot be considered on this appeal. Nevertheless we have examined the affidavit in connection with the other evidence in the record, and think the court did not err in refusing a new trial on this ground. The court, we think, charged the jury correctly on the law applicable to the case, and to which no exceptions were taken except in these words: “Exception to the charge by the defense.” Under such a wholesale exception as. this, if any part of the charge is correct it is sufficient, to sustain the entire charge. No statement of the case [456] appears to have been settled on the hearing of appellant's motion for a new trial, and hence there is nothing px-op-erly before this court for consideration. The judgment of the district court is therefore affirmed. Blaoeburn, J., and Miner, J., concurred.