Bardwell v. Clare , 47 Iowa 297 ( 1877 )

Seevers, J.

, trial: jury. I. The answer of the defendant as originally filed asked that the deed be declared fraudulent and void, and other relief' of an equitable character. In no event was he entitled to any such relief, for he did not claim any title whatever to the premises, and as we understand the abstract so much of the answer as asked such or any other affirmative relief was withdrawn before the commencement of the trial. When the cause was called for trial the defendant demanded- a jury, to which the plaintiffs objected, but the same was overruled and they excepted, and this action of the court is' assigned as error. There was no error in this resjuect, for the jdaintiffs’ action ig clearly at law, and after the withdrawal of all claim to affirmative relief in the answer there was no equitable issue in the case.

II. The next error assigned is in overruling plaintiffs’ motion for judgment, regardless of the verdict of the jury. This assignment of error is not insisted on in the argument by counsel, and it will, therefore, be deemed waived. But in ho event were the plaintiffs entitled to judgment. At most they were only entitled to a new trial.

III. It is also assigned as error that the court erred in overruling plaintiffs’ motion for a new trial. This assignment is too general, because the motion sets up several distinct reasons or causes why the motion should be sustained, and all of them certainly are not well taken.

o court-Passfgnmust Se01101: . specific. IV. It is further assigned as error “ That the court erred in rendering judgment for plaintiffs for costs,” and “The court erred in refusing to set aside the verdict, an^ n0^ rendering judgment for plaintiffs for amount of claim and interest.” These assignments are £00 geuei-aij for under them any error of the court committed during the trial, which would have the effect of setting aside the judgment and granting a new trial, could be well presented. Assignments of error should be as specific as the case will allow, and point out the very error objected tol Code, § 3207. Eor instance, it is pressed in argument with force and zeal that the verdict is contrary to the evidence, and yet no such error is assigned. It certainly could have been done, and then the assignment of error would have been sufficiently specific.

„ mission on" instruction. V. It is lastly assigned that the court “ erred in allowing defendant to introduce on the trial evidence of an agreement wherein Wonderlech had the right to redeem the premises.” It is claimed that such evidence was not admissible, because there was no such issue made in the pleadings. This may be admitted. The court instructed the jury: “There is no question in this case in regard to redemption, and any testimony introduced, on the trial need not be considered by you in regard thereto.” This instruction in plain terms takes such evidence from the jury. The alleged error was, therefore, corrected. Cook & Mitchell v. Holmson, 42 Iowa, 474.

Counsel in this connection claim that certain testimony in relation to "VVonderlech’s right to the rent was not taken from the jury, and that such evidence was also inadmissible for the reason above stated. This may also be admitted, but no such error is assigned.

Having thus disposed of all the errors properly assigned the .result is the judgment of the Circuit Court must be

Affirmed.