Smith v. Detroit United Railway

200 N.W. 941, 229 Mich. 60

• Court: Michigan Supreme Court
• Decided: December 10, 1924
• Docket: Docket Nos. 44, 45.
• Status: Published

Opinion

Clark, C. J.

Two cases were heard and submitted as one. To review judgments for plaintiffs, defendant brings error. Appellant says:

“The principal error complained of in this ease was the refusal of the judge to direct a verdict on the conclusion of the plaintiffs’ case.”

This is based upon the following assignment of error:

“That the said court erred in refusing to grant defendant’s motion made at the conclusion of the plaintiffs’ cases requesting the said judge to direct a verdict in favor of the defendant of no cause of action.”

The record shows no request or motion for a directed verdict in the trial court. No amendment of or addition to the bill of exceptions in this regard has been sought. The assignment has no foundation in the record. The question cannot be raised for the first time in this court. Hence we cannot consider it.

Error is assigned that the trial judge in settling the bill of exceptions included, over defendant’s objection, testimony adduced by it and declined at its request to strike out an assignment of error. This will not be reviewed on error. McIntire v. Carr, 168 Mich. 462; People, ex rel. Crane, v. Wayne Circuit Judge, 24 Mich. 513; 2 Green's Mich. Prac. (3d Ed.), p. 1155; 2 Stevens' Mich. Prac. p. 482.

Judgments affirmed.

McDonald, Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred.