hat such unnecessary instruction mislead the jury in its considera-
ion of the facts of the case, the judgment will be reversed. Meredith
• Kennard..
-: If an erroneous charge be given on an abstract proposi-
tion, or on a point not in the case, and the verdict is supported
by proof in the cause, the judgment will not be disturbed.....
TO JURY: Unsupported by evidence. It is error for the judge
to instruct the jury that they will not find for a party a certain
sum claimed by him, unless the claim therefor has been
assigned to him, when there is no evidence whatever of any
assignment. Holmes v. Boydston.....
-: Exceptions to charge. If the charge of the court to the jury
contain more than one proposition, and any portion of it be
correct, each specific point deemed erroneous must be pointed
out, and separately excepted to. A general exception will
be unavailing. McReady v. Rogers....
To make exceptions to the charge of the court to
the jury available to the party excepting, the exception must
be reduced to writing, together with so much of the charge
as is necessary to explain it. Monroe v. Elburt
: Bill must be signed in term. If the bill of exceptions be
not reduced to writing and tendered during the term at which
the trial is had, it will be disregarded......
ONTINUANCE a. The affidavit for the continuance of a cause, to pro-
cure the evidence of a co-defendant, is fatally defective, if it does
not state the testimony which the affiant expects will be given by
the absent party. Jameson v. Butler ....
115
b. · Overruling motion for. Whether the refusal to grant a
continuance can be assigned for error: quere?..
0. DEPOSITION a. CERTIFICATE. A certificate to depositions, showing
that the witnesses were sworn to testify the truth, the whole truth,
and nothing but the truth, without naming the cause or matter in
or about which they were sworn, and showing the other facts pre-
scribed by the statutes, is sufficient.
- Depositions taken in a cause instituted by one plaintiff
with whom others are afterwards joined, may be read in evi-
dence, if applicable to the case, after the amendment as to
parties. Holmes v. Boydston
11. INSTRUCTION TO JURY a. It is perfectly proper when a jury returns
into court and requests further instructions, for the judge, in the
presence of the parties or their counsel, to repeat what he has
already said, or add whatever is proper in the case, which will aid
them in reaching a conclusion. Homan v Laboo..
-: Presumptions of correctness. If the record does not show
that it contains all the testimony, it will be presumed that
there was evidence which would justify a charge of the court,
although it does not appear at large
It is not error for the court to decline to give a request
for instructions to the jury, in the words of the request, if the
substance thereof is given in terms as favorable to the party.
Jameson v. Butler
12. NEW TRIAL a: Assault and battery. In an action for assault and bat-
tery, a new trial will not be granted on account of the smallness of
damages awarded by the verdict. Shoff v. Wells
-: Error. If it be granted and another trial takes place, at
which larger damages are awarded by the jury, all proceed-
ings after the first verdict will be set aside, and judgment be
ordered on that verdict
: Motion for new trial. Errors in the admission or refusal
of testimony on the trial, and in giving or refusing instructions
to the jury, will be considered as waived, unless complaint
thereof be made in the motion for a new trial. M. P. Railway
Co. v. McCartney....
18. RECORDS a. The attention of counsel is called to the necessity
of seeing to it, that proper orders are entered in the records of the
District Court, and that full transcripts thereof are brought to the
Supreme Court. Orr v. Seaton....
-: Time to answer. When, to a defendant in default for
want of answer, the time is given which is fixed by statute,
he has to the third Monday following, to answer, and no longer id
-: Objecting to service. A defendant who has answered,
although his answer has been stricken from the files, and who
has applied to the court for leave to answer over, has appeared
to the action, and cannot object to the form of the process..
· Opening a default. Whether a default shall be opened,
is a question addressed to the discretion of the court. The
Supreme Court will not interfere with its exercise, unless it
is oppressive...
: Paper not rightly in record. A deposition used upon a
hearing in the District Court, but not included nor referred
to in the bill of exceptions, will, on motion in this court, be
stricken out of the transcript. Nebraska City v Baker......
f.: Records for Supreme Court. The court reflects upon the
habit of inserting in the transcripts of the proceedings in the
District Court, papers filed therein upon which no question is
made, because the same unnecessarily incumber and burden
the records of the Supreme Court. Morgan v. Larsh....... 361
: Objections to testimony must be stated at the time the
same is offered, or they will be disregarded in this court
14. SUMMONS a. Appearance to summons in error. An attorney of record
in a cause in the District Court, may, when the cause is removed
into the Supreme Court, enter therein the voluntary appearance of
his clients, without the issue or service of summons in error. Mc-
Donald v. Penniston....
b. —: Records in Supreme Court. Transcripts of records of
proceedings had in the District Court, when filed in the
Supreme Court for the purpose of reviewing the action
appearing thereby, must show when and where the court was
held, its term, and the names of the judge and other officers
present, and be duly authenticated by its clerk ..........
· Endorsement of Summons. No other judgment can be
rendered than that, notice of which is endorsed on the sum-
Watson v. McCartney..
: If a summons, issued in an action of such a character as
does not require an endorsement, be actually endorsed, the
notice so given must fully and truthfully inform the defend-
ant of the extent and nature of the claim alleged against him
·: Amendment of endorsement.
summons giving the defendant notice of the nature and
extent of the plaintiff's claim, cannot be amended unless the
defendant appear in the action....
f.: Service of summons on return day. A service of summons
made on the return day thereof is sufficient to require the
defendant to appear to the action, and is effectual to support
a judgment by default if he fail to appear. Aumock v. Jamison 48?
: Service of summons on agent of a corporation. An agent
invested with the general conduct and control, at a particular
place, of the business of a corporation, is a managing agent,
within the 75th section of the Code, upon whom a summons
may be served. It is immaterial where he resides. Porter v.
The Chicago & N. W. R. R. Co.......
: Appearance. A defendant may appear specially to object
to the jurisdiction of the court, either over his person or the
subject matter of the suit, without waiving his right to be
heard on these questions in bank. Per MASON, Ch. J.......
But if he seeks to call into action any power of the court
except on the question of its jurisdiction, his appearance is
general...
6. VERDICT a. The appellate court will presume the verdict of the jury
sustained by the evidence, unless the contrary fully appear. The
Midland Pacific Railway Co. v. McCartney
All the evidence adduced on the trial should be
preserved in the bill of exceptions, and the fact be accord-
ingly stated, in order to justify a claim that the court below
erred in refusing a new trial, asked for on the ground that
the verdict was not sustained by sufficient evidence
It is not usual for courts to disturb the verdict of a jury,
because it is against the weight of evidence, when there is any
evidence to support it. Jones v. Edwards..
d. -: A verdict which finds two inconsistent facts, is void, and
cannot be the foundation of a legal judgment. Meredith v.
Kennard
The verdict must respond to all the material issues
between the parties
Cases may occur, when a general verdict alone will be a
substantial response, to the issues taken by special matters
set up in the pleadings.
See ACTIONS 1. ARBITRATIONS 1. ATTACHMENT 1, 2. CREDITOR'S BILL 1.
DAMAGES 1, 2. EVIDENCE 1, 2, 3, 4, 5. JUDGMENT 1, 8, 4, 5, 6.
MECHANICS' LIEN 1.
RES ADJUDICATA 8.
LEX LOCI CONTRACTUS. MANDAMUS 1.
OFFICER 2. PARTIES. QUO WARRranto 1, 2.
Practice in Criminal Cases.
1. - Section 166 of the Criminal Code, as enacted while Nebraska
was a Territory, providing that the indictment shall run in the name
of "The Territory of Nebraska," is modified by the clause of the
constitution which provides that it shall run in the name of "The
People of the State of Nebraska." Burley v. The State....
2 -: Called terms. It is not necessary that the record should show
affirmatively that every step was taken to convene the court at a
called term, in order to support the proceedings had thereat, provid-
ing enough appears to establish the facts
: Pleading. A plea to the jurisdiction which only alleges con-
clusions of law, and not facts adverse to the jurisdiction, is not
good ...
It is error to put a prisoner upon his trial before he has
plead to the indictment.....
But if the defendant plead "not guilty," and afterwards
file his motion to quash and plea in abatement and they are deter-
mined, and the trial proceeds without a renewal of the plea of "not
guilty," the presumption is that it, as first interposed, was not
withdrawn
: Evidence. It is error to refuse to permit, on cross-examination,
a question as to his being intoxicated being put to a witness, who,
on his direct examination, has testified to acts and declarations of
the accused and the deceased before the homicide, which tend to
fasten guilt on the former
id
· Filling vacancies in juries. It is error to fill vacancies in the
grand jury from the list of persons summoned as petit jurors, and
it is not material whether any injustice was thereby suffered by the
prisoner
888
· Called terms: Records in criminal cases. In a criminal case for
felony, in which the indictment or other proceedings are had at a
called term of the court, the record should show the request made
by the county commissioners to the judge for the term, the order of
the judge thereon, and the due publication of notice of the holding
of the court
—: Record in criminal cases for felony should show that a venire for
summoning the juries has been issued to the sheriff and been by him
executed, or that the court, by its order, directed the summoning of
the juries
The record should also show that the prisoner was
present at and during the trial, and at the rendition of the verdict.. id
11. -:Waiving a right. Nor can the prisoner waive his right thus to
be present when on trial for a capital felony
12. —: Pleading: The caption. It is not necessary to follow, literally,
the form for the caption to an indictment given in section 166 of the
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