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31 Iowa 129

Snyder v. Eldridge

Supreme Court of Iowa

Decided January 28, 1870

Supreme Court of Iowa · decided 1870-01-28

Plaintiff sued as a bona fide holder of a promissory note in the following form: “August 20th, 1868. “ On or before the 20th day of August, 1869, for value received, the subscribers of Sweetland township, county of Muscatine and State of Iowa, promise to pay to A. Ingalls or bearer one hundred and twenty dollars, it being given for the -profits on (4) machines, with interest at ten per cent per annum.

Decided 1870-01-28

Miller, J.

¶1l.practice: eiTors™ent°f — I. The appellant assigns three errors, two of which are presented in his argument. Only those presented will be considered. Shaw v. Brown, 13 Iowa, 508; Wilson v. Hillhouse, 14 id. 199.

¶2a new trial-II. The first error urgea in argument is, that “the verdict is contrary to and not supported by sufficient evidence.” The only question of fact in issue was in respect to the execution of the note by defendants. The signatures to the note being denied under oath the burden of proving them devolved on the plaintiff. Nev. of 1860, § 2961, as amended by act of 9th Geni. Assem. ch. 28, § 2; 2 Greenl. Ev., § 163.

¶3The evidence is conflicting, with a very strong preponderance in favor of the verdict. Where the evidence is conflicting, and the court below which heard the evidence, with full opportunity for observing the manner and appearance of the witnesses, has overruled appellant’s motion for a new trial on that ground, this court will not interfere. Devin v. Harris, 3 G. Greene, 186; Winfield v. The State, id. 339; Hall v. Hunter, 4 id. 539; Gordon v. Pitt, 3 Iowa, 385; State v. Elliott, 15 id. 72; Pilmer v. The Branch of State Bank, etc., 19 id. 112; Donaldson v. M. & M. R. Co., 18 id. 280; Havelick v. Havelick, id. 414; Brockman v. Berryhill, 16 id. 183.

¶4tions to°in-’ III. The remaining error noticed in argument is, that “ the court misdirected the jury as to the law governing the case, in respect to the signatures to the note, as contained m its sixth instruction to the jury.

¶5The record fails to show that any exception was taken to this instruction at the time. It is true the appellant, in his motion for a new trial, assigned the giving of this instruction as ground for a new trial, and he excepted to the overruling of his motion. This, however is not sufficient. An exception to an instruction given or refused must be *131taken, at the time. Rev., § 3106; Perkins v. Whittam et al., 14 Iowa, 596; Beasom v. Jonason, id. 399; Darrance v. Preston, 18 id. 396; Norton v. Swearengen, 19 id. 566, and cases there cited.

¶6There having been no exception taken to the instruction at the time, there is no question presented thereon for our determination. The judgment of the court below is

¶7Affirmed.

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