
    Thomas Burke v. J. D. Brown et al.
    Filed November 18, 1896.
    No. 6904.
    Rulings on Evidence: Assignments oe Error: Review. Where no complaint is made in the motion for a new trial as to the ruling of the court in admitting or excluding evidence, either specifically or in the language of the statute, namely, “Error of law occurring at the trial” (Code, sec. 314), this court will not review an assignment in a petition in error that the district court erred in admitting or excluding certain evidence on the trial.
    Error from the district court of Blaine county. Tried below before Harrison, J.
    
      J. Warren Gardiner and A. S. Moon, for plaintiff in error.
    
      Sullivan & Gutterson and E. H. Bigg, contra.
    
   Ragan, 0.

Thomas Burke brought this suit in the district court of Blaine county against J. D. and F. E. Brown. There was a verdict and judgment for the defendants and Burke prosecutes here a petition in error. The action was based upon a promissory note made by the Browns to one Northup, which Brown alleged he had purchased before due for a valuable consideration. The defense was a material alteration of the note after its delivery, in this: That the note when delivered did not provide for interest, but that subsequently tbe payee bad inserted in tbe note, “Interest at ten per cent from date.”

1. Tbe first argument in tbe brief is that tbe court erred in excluding certain evidence offered by tbe plaintiff in error. Tbe petition in error is that “tbe court erred in excluding testimony material to tbe issue.” Tbis assignment is too indefinite for review. In addition to tbis it is to be remarked that tbe plaintiff in error, in bis motion for a new trial, makes only three complaints, namely, that tbe verdict is contrary to law, not sustained by sufficient evidence, and that tbe court erred in giving certain instructions. It seems almost superfluous to remark, in view of tbe repeated decisions of tbis court, that it is not necessary in a motion for a new trial to assign specifically that tbe court erred in admitting or excluding certain evidence, but in that motion it is sufficient to use tbe language of tbe statute, viz., for “Error of law. occurring at tbe trial” (Code, sec. 314); and under such an assignment in a motion for a new trial tbe plaintiff in error here may review tbe action of tbe court in admitting or excluding evidence by specifically assigning in bis petition in error what particular evidence tbe court admitted or excluded, but where no complaint is made in the motion for a new trial as to the ruling of tbe court in admitting or excluding evidence, either specifically or in tbe language of tbe statute, then tbis court will not review an assignment of error in a petition in error directed to tbe action of tbe court in admitting or excluding evideuce on tbe trial.

2. A second assignment is that tbe court erred in giving instruction No. 6. On looking into tbe record we discover that tbe plaintiff in error took no exception to tbe action of tbe court in giving tbis instruction, and we cannot therefore review tbis assignment.

3. Tbe third assignment is that tbe verdict is not supported by sufficient evidence. We think it is. Tbe judgment of tbe district court is

Affirmed.

Harrison, J., not sitting.  