Smith v. Berry

8 Ky. Op. 795, 1876 Ky. LEXIS 266

• Court: Court of Appeals of Kentucky
• Decided: November 16, 1876
• Status: Published

Opinion

Opinion by

Judge Cofer:

The appellant did not except to the order requiring him to elect which of the causes of action he would prosecute, and by failing to do so waived any right he might otherwise have had to insist in this court that said order was erroneous. Nor did he except to the single instruction given by the court or ask any instruction in respect to limitation, or anything else.

The bill of exceptions shows that “the parties asked the court to instruct the jury in the law of the case,” but no instructions were offered; nor does it appear that the appellant even suggested to the court the points upon which he desired to have the jury instructed. A party has no right thus to abandon his case to the court without suggesting what instructions he desires to have given, and then to ask this court to reverse the judgment because instructions which might have been proper were not given. It is the duty of counsel to ask instructions upon such points as they desire, and of the court to give or refuse them; and when none are specially asked for, the court trying the cause has a right to assume that such as are given meet the views of counsel, and that no others are desired; and upon an appeal this court will assume that the omission to give further instructions was assented to.

Judgment affirmed.