Roberts v. Webster , 25 Nev. 94 ( 1899 )

The facts sufficiently appear in the opinion. This action was brought to recover damages alleged to have been sustained by reason of the wrongful and fraudulent acts of the appellant while acting as attorney and trustee for the respondent in matters relating to certain real estate in Washoe county, Nevada. In a trial of the issues before a jury a verdict was returned in favor of the respondent, and judgment rendered thereon. From this judgment, and an order denying the appellant's motion for a new trial, the appeal has been taken.

We do not deem it necessary, under the assignment of errors, to recite in detail the averments of the various pleadings, or the facts presented in the statement. It appears that nearly the whole of the testimony adduced at the trial was given by the appellant and respondent, and, in the main, these witnesses agreed as to nearly all the material facts.

The appellant assigns as error that the verdict of the jury and the judgment are contrary to, and not supported by, the evidence. The points suggested by the appellant under this assignment relate exclusively to such evidence as was given upon the trial by the parties, and upon these points an examination of the record sufficiently establishes the fact that there was material conflict between the testimony given by the respondent and that given by the appellant.

It has been repeatedly decided that this court will not weigh the testimony or determine the credibility of the witnesses, and where, as in this case, a material conflict is shown, the court will sustain the verdict of the jury and the judgment of the trial court. Neither do we believe that the verdict of the jury was so excessive as to show that it was laboring under the influence of passion and prejudice against the defendant.

Much stress was placed in the argument upon certain objections to instructions given by the trial court to the jury. This matter is not properly before us. It is expressly provided by our statute that when notice of motion for new trial designates as the ground of the motion errors in law occurring at the trial, and excepted to by the moving party, the statement shall specify the particular errors upon which the party will rely, and, if no such specifications be made, the statement shall be disregarded. (Stats. 1893, p. 89; Corbett v.Job, 5 Nev. 201.) The record in this case shows that no specification of any error relating to the instructions was ever made, and under the provisions of the statute, and the authorities above cited, the matter is not before this court.

The judgment and order appealed from will therefore be affirmed.

ON PETITION FOR REHEARING.