Jones v. Setera , 177 Or. 615 ( 1945 )

KELLY, J.

Error is assigned because of the trial court’s denial of plaintiff’s motion for a mistrial, or, in lieu thereof, for an instruction to the jury to disregard remarks of defendants’ attorney describing one of the defendants as a poor woman, and asserting that, if judgment were given against defendants, it could not be wiped out in bankruptcy.

None of the testimony appears in the record before us, therefore, we are unable to determine whether or not the course taken by counsel for defendants and the trial court, as reflected by plaintiff’s assignment of error, constituted prejudicial error.

Upon an appeal to this court from a judgment, the same shall only be reversed or modified for errors substantially affecting the rights of appellant. Section 10-810, Yol. 2, O. C. L. A. p. 256.

In all the cases cited by plaintiff, the testimony was before the courts in their consideration of the question of the effect of improper remarks by counsel.

It is obvious that, unless at least a prima facie case was presented by the testimony in behalf of plaintiff, her rights were not substantially affected by the remarks of defendants’ attorney. So also, may the same thing be said, if the testimony in behalf of defendants was convincing to the extent of showing that defendants were blameless.

The judgment of the circuit court is affirmed.