Hellen De Lendrecie, Plaintiff and Appellant, v. Jarvis Peck, Defendant and Respondent.
1. Appeal; Error Not Excepted to.
The action of the trial court in directing a verdict, and in refusing to allow plaintiff to dismiss her action, cannot be reviewed on appeal without an exception. Sections 5080, 5237, Comp. Laws, held not to permit such review without an exception.
(Opinion Filed February 25, 1891; Rehearing Denied.)
APPEAL from district court, Ransom county; Hon. W. S. Lauder, Judge.
W. E. Dodge, for appellant; S. H. Moer, for respondent.
Corliss, C. J. We regret that imperative rules of practice prevent our examining the merits of the questions raised on this appeal. They are not properly before us. Appellant’s counsel has failed to challenge by exception the correctness of the ruling of which her new counsel now complains. The action is in the nature of replevin. Plaintiff’s theory of the action, as disclosed by the complaint, was absolute ownership. On the trial she asked the privilege to amend her complaint by averring a special interest in the property. This request was denied. While this ruling was excepted to, error is not here assigned on account of it, and the question is not argued in this court. Failing to secure an amendment, plaintiff then requested leave to dismiss her action. This motion was not ruled upon. At the same time defendant asked for an instruction from the court directing a verdict in his favor. The motion of defendant was granted, and from the judgment.based upon the verdict so directed this appeal is taken. Appellant’s counsel failed to except to the action of the court directing a verdict; nor did he except to the failure of the court to allow plaintiff the privilege of dismissing the action on her motion. The necessity of exceptions to present these questions is not seriously controverted, except upon the theory that the general rule requiring an exception in such cases is rendered inapplicable by the provisions of § 5080 and § 5237 Compiled Laws. Section 5080 cannot possi-
