Whitney v. Olmstead , 5 Iowa 373 ( 1857 )

Stockton, J.

The record in this cause does not show that defendant excepted, at the time, to the refusal of the court to give the instructions asked. The motion for a new trial was based upon the refusal of the court to give the instructions; but it is only from this motion, as contained in the record, that we learn what instructions were asked, and that they were refused. This court has heretofore held, that exceptions must be taken, at the time, to a refusal of the court to charge the jury, as requested; and that the fact of a refusal, and the exception thereto, must plainly appear from the record. Rawlins v. Tucker, 3 Iowa, 213; Talty v. Lusk, 4 Ib. 469. The party will not be permitted to assign for error in this court, the refusal of the district court to charge the jury, as requested, if the fact of such refusal, and of his exception thereto, only appear by the motion for a new trial.

Upon the second head of the assignment of errors, in relation to the refusal of a new trial, as no portion of the evidence given to the jury, is set forth in the record, we are not able to judge whether or not it was sufficient to sustain the verdict; and the action of the district court, in the absence of any positive showing to the contrary, is presumed to have been correct.

Judgment affirmed.