
    St. L., A. & T. R’y Co. v. G. C. Ovenbaum.
    (No. 6546.)
    Appeal from Hill County.
    McKinnon & Carlton, counsel for appellant.
    Alexander & Winter, counsel for appellee.
    June 4, 1890.
   Opinion by

Willson, J.

§ 120. Condemnation proceedings; right to open and conclude; erroneous ruling as to, immaterial when; charge of court. This is a proceeding brought by appellant to condemn rights of way for its railway over appellee’s land. Appellee was awarded $1,235 damages. It appears from a bill of exception that on the trial the court ruled that appellee was entitled to open and conclude the argument in the cause. It does not appear, however, from said bill or otherwise, that appellee availed himself of the privilege awarded him by said ruling, and hence, even if said ruling was erroneous, the error was immaterial, because no injury could have resulted to appellant from the mere granting of said privilege, and we cannot assume that the privilege granted was exercised, when to so assume would be to impugn the correctness of the judgment. As to the charge of the court, as far as it goes it is substantially correct. If appellant was not satisfied with it, additional instructions should have been requested. If any additional instructions were requested by appellant and refused, the record fails to show that fact.

Affirmed.  