Wisson v. Baird

1 White & W. 389

• Court: Court of Appeals of Texas
• Decided: January 11, 1879
• Docket: No. 475, Tex. L. J., vol. 2, p. 439
• Status: Published

Opinion

Opinion by

Ector, P. J.

§709. Assignment of error; office and duty of an. The first error assigned is that “ the court erred in its charge to the jury.” This assignment is too general. An assignment of error should be such as to draw the attention of the court to the pai'ticular portion of the charge intended to be relied on for a reversal of the judgment.

§710. An erroneous charge of court; effect of. A charge in itself erroneous will not, in a civil case, be sufficient ground for reversal, when no exception is taken or additional instruction or counter-charge asked, unless it clearly appears that the jury were misled by the charge given and complained of. [Cook v. Wooters, 42 Tex. 294.] When a charge of the court is correct as far as it goes, but does not cover the whole ground, it is the duty of the parties to ask an additional charge, if desired. If the charge was thought to be imperfect or incomplete in its presentation of the law of the case, it was the right of the party to supply any supposed omission or imperfection by asking the proper instruction. [Stadtler v. Wood, 24 Tex. 622; Powell v. Haley, 28 Tex. 55; Linn v. Wright, 18 Tex. 317; Farquhar v. Dallas, 20 Tex. 200.]

§711. Newly discovered evidence; new trial for, when. In order to entitle a party to a new trial on the ground of newly discovered evidence, the applicant must satisfy the court that the newly discovered evidence came to his knowledge after the trial; that there was no want of diligence on his part in not obtaining a knowledge of it sooner; that the newly discovered evidence would probably change the result on another trial. Such evidence must he set out in the motion for new trial, which motion must be accompanied by the affidavit of the witness by whom it is expected to make the proof, or the absence of the affidavit must be accounted for; and the newly .discovered evidence must not be cumulative merely. [Graham & Waterman on New Trials, 1021; Burnley v. Rice, 21 Tex. 180; Spillars v. Curry, 10 Tex. 143; Scranton v. Tilley, 16 Tex. 193; Kilgore v. Jordan, 17 Tex. 346.]

January 11, 1879.

§ 712. Conflict in evidence. When there is a conflict in the evidence, but it does not clearly appear that the verdict is wrong, as that it is without evidence or against evidence, a new trial will not be granted on appeal. [Mitchell v. Matson, 7 Tex. 4; Sims v. Chance, 7 Tex. 561; Stroud v. Springfield, 28 Tex. 676; Tuttle v. Turner, 28 Tex. 775.]

Affirmed.