Opinion
March 16, 1926.
TRIAL: Verdict — Noninconsistent Verdict. A verdict against two 1 of three defendants may not be said to be inconsistent with itself when the record reveals the fact that the testimony against the exonerated defendant was less persuasive than that against the other two defendants. (See Book of Anno., Vol. 1, Sec. 11508, Anno. 7 et seq.)
APPEAL AND ERROR: Exceptions — Necessity For. Failure to except 2 to an adverse ruling on a motion for new trial precludes appellate review of exceptions embodied in the motion. (See Book of Anno., Vol. 1, Sec. 11536.)
APPEAL AND ERROR: Exceptions — Necessity For. Failure to except 3 to an adverse ruling on an objection to argument precludes appellate review.
APPEAL AND ERROR: Abstracts of Record — Amendment by Appellee —
Effect. et seq.) Headnote 1: Headnote 2: Headnote 3: Headnote 4:
Appeal from Polk District Court. — O.S. FRANKLIN, Judge.
ACTION at law, to recover money paid on contract to purchase corporate stock, based on rescission for fraud. Verdict and judgment for plaintiff. Defendant appeals. — Affirmed.
Clark Byers, for appellants.
Chester J. Eller, for appellee.
I. The sale of corporate stock involved in this case is one of three sales made as a part of the transaction considered in the case of Pullan v. Struthers, 201 Iowa ___. Another sale of stock in the same corporation, and involved in an action based upon it, was before us in Reinertson v. Struthers, 201 Iowa ___. Most of the questions presented here have been disposed of by our opinions in those cases, and further discussion of them would be superfluous. The evidence here, as there, was ample to warrant the submission of the question of conspiracy to the jury.
II. The action by James Pullan and this action were brought against A.D. Struthers, S.F. Ellis, James H. Jameson, John C. Kudej, and the Bankers Loan Investment Company. The individual defendants named in each action filed a joint 1. TRIAL: answer, consisting of a general denial. In the verdict: present action, separate amendments in behalf of nonincon- each individual defendant were filed. In the sistent James Pullan case, the jury returned a verdict verdict. against Struthers, Ellis, and Jameson, but not against Kudej. The plaintiff in the present case dismissed as to Kudej. The jury returned a verdict in this case against Struthers and Ellis, but not against Jameson. It is assigned as error that the verdict, because not returned against Jameson, is inconsistent with itself; and it is argued that the evidence is the same with respect to the liability of each defendant, and that the verdict, having been returned in favor of one and against another, therefore, cannot be permitted to stand. We are not referred to any part of the record showing that this question was brought before the trial court. If it was raised by the motion for new trial, the abstract fails to show exception to the order overruling it. The question was argued as to Kudej in the James Pullan case. The evidence with respect to the complicity of James H. Jameson in the fraudulent transactions is quite different, in many respects, from that in respect to the complicity of Struthers and Ellis. The defendants must have considered this to be true, because the motion to direct a verdict, made at the close of the plaintiff's evidence, was, in respect to the sufficiency of the evidence, made separately in behalf of Jameson and the other defendants, as well as jointly. For these various reasons, the assignment of error is not sustained.
III. Errors are assigned to the instructions. The principal points made were argued and passed upon in the James Pullan case. Here, judgment was entered on the verdict at the time it was returned; and afterwards, motion for 2. APPEAL AND new trial embodying exceptions to the ERROR: instructions was filed. The abstract shows that exceptions: the motion for new trial and exceptions to necessity instructions were overruled, but does not show for. that any exception was taken. The exceptions to the instructions are, therefore, not reviewable. Gibson v. Adams Exp. Co., 187 Iowa 1259; Anthony v. O'Brien, 188 Iowa 802; Lutz v. Davis, 195 Iowa 1049. However, we have examined the instructions and exceptions to them, and find no prejudicial error.
3. APPEAL AND ERROR: exceptions: necessity for.
IV. Alleged misconduct of plaintiff's counsel in his argument to the jury was excepted to before submission of the case. The record shows that this was done by way of statement of defendants' counsel, taken down by the reporter, reciting counsel's interpretation of what was said in the absence of the court, and inferentially in the absence of the reporter. Plaintiff's counsel excepted to this statement by defendants' counsel, and stated that it was not true. Plaintiff's counsel then proceeded to recite what he claimed was his statement to the jury. There is no other record as to what in fact occurred. The statement of plaintiff's counsel, as an admission of what he said, as well as the alleged statement which he denied, is argued here, as constituting misconduct. Such statement by plaintiff's counsel was, however, not made the ground of an exception or of motion for new trial. The statement which defendants' counsel claims was made by plaintiff's counsel to the jury is not sustained by the record, and, as noted, no exception to the action of the court in overruling it as ground for new trial appears.
V. Appellants move to strike appellee's amendment to abstract. In this amendment, appellee denies appellants' abstract, and sets out nearly 40 pages of evidence and a certificate that the amendment, "together with the certification of 4. APPEAL AND the original transcript and all the papers and ERROR: exhibits to the Supreme Court, together with the abstracts pleadings and evidence set out in appellants' of record: abstract, constitute sufficient record," etc. amendment by Under Rule 17, if appellee deems the appellants' appellee: abstract incorrect or effect. unfair, he should furnish additional abstract. He will not be permitted merely to deny appellants' abstract and remit the court to an examination of the record below. His amendments will be accepted as true, unless denied and the denial sustained by certification of the record. In this case, the appellants do not deny the correctness of the amendments. There was, therefore, no necessity for certifying the record.
We find that the amendments are not, as is further claimed by appellants, unnecessary or a repetition. We must assume them to be correct, and they set out only such additional material as is proper and necessary to a correct understanding of the evidence. The motion is overruled. The judgment is — Affirmed.
EVANS, STEVENS, FAVILLE, and ALBERT, JJ., concur.
De GRAFF, C.J., not participating.