Opinion
No. 28,027.
January 9, 1931.
Case or bill of exceptions necessary for review of charge.
Without a case or bill of exceptions errors in a charge to the jury are not reviewable.
Plaintiff appealed from an order of the district court for Hennepin county, Bardwell, J. denying his motion for a new trial. Affirmed.
Einar Hoidale and F.M. Selander, for appellant.
Neil M. Cronin, City Attorney, and John T. O'Donnell, Assistant City Attorney, for respondent.
Action to recover damages for the death of the plaintiff's intestate alleged to have been caused by the negligence of the defendant city in the maintenance of a street. There was a verdict for the defendant. The plaintiff appeals from an order denying his motion for a new trial upon the ground of errors of law occurring at the trial.
The assignments of error in this court are directed to alleged errors in the charge to which exceptions were taken in the motion. There is no settled case or bill of exceptions. The parties have stipulated and the court has certified to so much of the proceedings below as are contained in the charge; nothing more. Counsel for the plaintiff contend "that instructions on essential issues are presumed to be applicable to the evidence and if erroneous are presumed to be prejudicial."
From territorial days it has been the declared statutory law that an order denying a motion for a new trial can be reviewed for errors of law occurring at the trial, and an error in the charge is such only upon a settled case or bill of exceptions. G. S. 1923 (2 Mason, 1927) §§ 9325-9326. Neither is presented on this appeal, and what occurred at the trial we do not know. The order denying a new trial is appealable. We have jurisdiction. We can affirm or reverse; but we do not review abstract questions pertaining to a charge with no facts to which it is applicable before us. 1 Dunnell, Minn. Dig. (2 ed.) § 347, et seq.
Order affirmed.