City of Seattle v. Harclaon

354 P.2d 928, 56 Wash. 2d 596, 1960 Wash. LEXIS 383

• Court: Washington Supreme Court
• Decided: August 18, 1960
• Docket: 34913
• Status: Published

Opinions

Per Curiam.

— This is an appeal from a judgment based upon an award of the jury in a condemnation action. Appellant’s attorney at the trial did not represent him on appeal.

.Appellant assigns error to the court’s instructions Nos. 5, 8, 10, and additional instruction No. 2. No exceptions were taken to any of the court’s instructions, and they became the law of the case. Holmes v. Toothaker, 52 Wn. (2d) 574, 328 P. (2d) 146 (1958).

Appellant next assigns error to alleged misconduct of the trial judge in participating in the questioning of the •expert witnesses by asking leading questions, and questions which appellant contends were comments on the evidence. Appellant concedes that none of the claimed errors, standing alone, would merit reversal, but contends that, considering them in the aggregate, the appellant was denied a fair trial.

No objections were made to the court’s participation in the examination of the witnesses. It is the duty of counsel to call to the court’s attention, either during the trial or in a motion for new trial, any error upon which appellate review may be predicated, in order to afford the court an opportunity to correct it. Olson v. Seattle, 54 Wn. (2d) 387, 341 P. (2d) 153 (1959); Lee & Eastes, Inc. v. Continental Carriers, Ltd., 44 Wn. (2d) 28, 265 P. (2d) 257 (1953); State v. Davis, 41 Wn. (2d) 535, 250 P. (2d) 548 (1952); Shoemaker v. Bryant Lbr. & Shingle Mill Co., 27 Wash. 637, 68 Pac. 380 (1902). The record before us does not show that the appellant called the alleged comments upon the evidence to the attention of the trial court, and no error has been assigned to the order denying the motion for new trial.

Counsel cannot, in the trial of a case, remain silent as to claimed errors and later, if the verdict is adverse, urge his trial objections for the first time on appeal. Bingaman v. Seattle, 139 Wash. 68, 74, 245 Pac. 411 (1926); Keough v. Seattle Electric Co., 71 Wash. 466, 128 Pac. 1068 (1913), and cases cited; Bodine v. Boyd, 383 Pa. 525, 119 A. (2d) 274 (1956); Weinrob v. Heintz, 346 Ill. App. 30, 104 N.E. (2d) 534 (1952).

Appellant’s next assignment of error relates to misconduct of counsel for the city of Seattle. Should it be conceded that the remarks were prejudicial, they were such as could have been removed from the jury’s consideration by an instruction to disregard them. No timely objection was made to the remarks, and the error, if any, was not preserved.

Finally, we find no merit in appellant’s assignment of error No. 5 (“The action of the court in striking the testimony of Maurice Hoard”) for the reason that the contention made relative thereto is not supported by the record.

The judgment is affirmed.