
    AMERICAN CENT. INS. CO. v. HEISERMAN.
    (Circuit Court of Appeals, Eighth Circuit.
    May 13, 1895.)
    No. 542.
    1, Appral—Demurrer to Evidence—Waiver.
    The overruling of a demurrer to plaintiff’s evidence is waived by defendant by proceeding to introduce his own evidence, and he cannot thereafter assign the same as error.
    8. Same—Error in Instructions—Failure to Except.
    Alleged error in giving instructions cannot be considered where either no exceptions were taken, or, if taken, the same do not appear upon the record.
    In Error to the Circuit Court of the United States for the District of Kansas.
    This was an action by Mary E. Heiserman against the American Central Insurance Company to recover upon a policy of fire insurance. There was verdict for the plaintiff, and judgment accordingly, and the defendant brings error.
    E. F. Ware (Robert W. Neal, on the brief), for plaintiff in error.
    J. K. Hallowell and Montgomery Hallowell filed brief for defendant in error.
    Before CALDWEUL, SANBORN, and THAYER, Circuit Judges.
   CALDWELL, Circuit Judge.

The first assignment is that the circuit court erred in not sustaining the defendant’s demurrer to the evidence. This demurrer was interposed at the close of the plaintiff’s evidence, and, when overruled by the court, the defendant proceeded to introduce its evidence. This was a waiver of the demurrer. The only other assignment not waived by counsel in the argument of the case is that the court wrongly instructed the jury on the measure of damages. But no exception was taken to the charge at the trial, or, if an exception was taken, that fact does not appear upon the record, and, not appearing of record, has no existence as a predicate for error. The judgment of the circuit court is affirmed.  