Cahill v. Baird

VAN DYKE, J.

The plaintiff, as assignee of ¡N". H. Hurdr an attorney at law, brought this action to recover the sum of fifteen hundred dollars, alleged to be due the plaintiff’s said, assignor for professional services rendered the defendant. The case was tried by a jury and a verdict rendered in the-sum of nine hundred and twenty-five dollars, for which judgment was entered. The defendant thereupon moved for a. new trial, which being denied, this appeal is taken from the-order denying defendant’s motion for a new trial.

The grounds urged for reversal are: Misconduct of the-jury; erroneous remarks made by the judge during the course of the trial, alleged to have evinced a prejudgment of the-case and to have prejudiced the jury; exclusion of certain evidence ; errors in law in instructing and failing to instruct the jury.

1. The affidavits relied upon in support of the alleged misconduct of the jury are not incorporated in the bill of exceptions, as required by rule 29 of this court, and, therefore,, cannot be considered.

2. We can see nothing objectionable in what was said by the-judge of the trial court during the progress of the trial. All except one of the instances of supposed injurious remarks, were merely rulings of the court in the admission and exclusion of evidence, couched in appropriate and unobjectionable-

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terms. The remaining incident- was a question to the attorneys as to the point of law suggested by the evidence offered, and was altogether appropriate, and could not have suggested anything to the jury unfavorable to the appellant.

3. We do not understand, as suggested by the appellant, that the court refused “to allow defendant to introduce any testimony as to former charges made by Mr. Hurd,” plaintiff's assignor. The ruling actually made was the exclusion of the judgment-roll in the former case of

Baird

v.

Baird

(in which the defendant as trustee was a party); and, as this ■does not appear in the statement, it cannot be determined whether it was admissible, or if admissible, whether the error would have been prejudicial. The question whether the evidence on the point was admissible is not presented by the record, and, therefore, cannot be considered.