George v. Nelson

¶1Complaint in three paragraphs; the first two for slander, and the third for malicious prosecution. Answer, general denial, and justification to the first paragraph of the complaint; to the second and third, a general denial was filed, but afterward withdrawn before trial. There was a reply of general denial to the justification; verdict and judgment for the defendant, from which the plaintiff appeals.

¶2All the errors insisted on in the brief would have been waived if they had not been assigned, as they were, as reasons for a new trial. There is, therefore, only one question in the record, in the sense of the constitution, which requires us to state and decide all the questions in the record. That question is, did the court below err in refusing a new trial ? Several reasons are insisted upon as being each sufficient to support the error alleged in this ruling ; but as we are not bound to examine all of them,1 and the state of the business here demands at present our best exertions to accomplish it,' we forbear to travel over the entire ground, as we otherwise might, and limit ourselves *393to so much as is merely necessary fairly to decide whether a new trial ought to have been granted.

¶3The instructions to the jury go upon the assumption that, there was a general denial to the second and third paragraphs of the complaint; indeed, they so state expressly. By statute, those paragraphs were admitted to be true, not being denied; and as there was no answer to them at all, it was the duty of the same jury which tried the issues growing out of the first paragraph, simply to assess the plaintiff’s damages upon the second and third. But there were instructions excepted to, in which the jury were told that they could not do this unless they found from the evidence that those paragraphs were substantially true. This was error.

¶4Judgment is reversed, with costs; cause remanded, with instructions to the Circuit Court to grant a new trial.