it can have any influence in the decision of the cause, or perform &be .office of a bill of exceptions or an assignment of error. Judgment affirmed.
May 16, 18lII.)
(C,,"cuU Court qf Appeals, E'41hth Circuit.
I.A.PPBALABLB OMBHs-NBW TRiALS.
A ruling either way on a nJotion for new trial cannot be 88signed for enur. McCleU,an v. Pyeatt, 50 Fed. Rep. 686, followed.
The suftlciency of the evidence to support the verdict cannot be considered b1 the reviewing court where the complaining party not only ne¥lected to ask a pel'emptory instruction for a verdict at the close of the whole eVIdence, but, without objection, permitted the court to charge the jury, upon the assumption that the case was one proper to be thus submitted. RaHroad Co. v. H,awthorTUJ,12 Sup. et. Rep. 591, 144 U. S. 202, and I1l8Urance Co. v. Unsell, 19 Bup. Ct. Rep. 671, 144 U. S. 489, followed.
In Error to the Circuit Court of the United States, Northem District err Minnesota. Action by Charles Stabler against the village of Alexandria, Doug·· las county, Minn., for personal injuries. Verdict and judgment fOJ: plaintiff. Defendant brings error. Affirmed. Charle8 C. Willson and H. Jenkins, for plaintiff in error. George H. Reynolds, for defendant in error. Before CALDWELL and SANBORN, Circuit Judges, and SHIRAS, District Judge. CALDWELL, Circuit Judge. This action was brought against the village of Alexandria, Minn., to recover damages for a personal injury received by the plaintiff from falling in the nighttime on a slippery sidewalk, upon which it was alleged the defendant had negligently permitted snow and ice to accumulate. There was a jury trial and a verdict and judgment for the plaintiff, and the defendant sued out this writ of error. No exceptions were taken to the ruling of the court in the course of the trial, or to the instructions to the jury. The defendant moved the court to set aside the verdict and grant a new trial, upon the ground, among others, that the evidence was not sufficient to sustain the verdict, which motion was overruled, to which ruling the defendant excepted. The counsel for the plaintiff in error states in his brief that "the sole error relied upon is that the evidence is not sufficient to sustain the verdiet." If the defendant below desired to test, on writ of error in this court, the sufficiency of the evidence to sustain the verdict, it should have asked at the close of the whole evidence a peremptory instruction for a verdict in its behalf. Railroad Co. v. Hawthorne, 144 U. S. 202, 12 Sup. Ct. Rep. 591. It did not do this, but without objection permitted the court to charge the jury, upon the assumption that the case, upon the evidence, was on.El proper to be .8ubmitted to the jury. ltia v.50F.no.8-44
of. tb'e' to support the verdtctijiig1if1 be sall challenged in thetlbui-t below by a motion' to set aside the.Veldict and' grant a new trial, but that motion only served to bnng the grounds of it to the attention of that court; and its rulings thereon, one way or the other, cannot be assigned fOr error.' 'JU(JltUaJn. v. PyeaU, 50 Fed. Rep. 686, (at the present term.) The case of :Co.v. UnBdl,144 U. S. 439,12 Sup. Ct. Rep. 671, the record in which we have consulted, shows there was a motion for a new trial· u]>olftheground,8.lnollg others, that the evidence was not sufficient to sustain the verdiet,but there was no request for a peremptory instruction for a verdict for the ,defendant. The court, after stating'that the only gr&urid for seri0\J.8', doubt in respect of the case was whether the evidence was sufficient, view of it, to sustain the only theor,y:;of. fact upon· which the plaintiff could recover, "and whether, if to find fl>rthe defendant, the;verdict and Judgment would, have· been dIsturbed; "say: ·. not ooJ;lsider the. calle In UlOse aspects. for the lassumed that it wauta be su'bmitted to the jury. and asked instructions touching the several points on which it relied. It did not ask a peremptory
behalf.. iIt cannot, therefore. be a sround of reversal that the issues of fact were submitted to tbe jurI."
(OWcmet Coun, D. NeuJ Hampshire. ' No. S46.
November II, 1891.)
matntl,1! :sued .B. to fotleelose a mortgage on land whloh B. claimed under a tax 3illBr 1873. '. ;rhe was sustained, and judgment rendered for B. .plaintiff brought another action to foreolose the same mortgage as to · dlfferelit tract of land, b,ut acquired by B. under a tax sale for taxes of the sam. Year, made tbe8ame ,town.· tbat,the 8ubject-mat.t<er of. tbe two act.ioll8 judgment in the.ilrat W88 not a bar to the aecond.
0 .. ' BUBlBOT-MATTBB.
At Law. Action by L. Fessenden against Samuel N.Barrett mdothers·to Defendants dismiSs. Motion overrUled. R. E. Walker and L. F08ter,'for plaintiff. R.M. Wallace, for defendants. '