Legal Opinion

Marsh v. Graham

Supreme Court of Iowa

Decided April 15, 1858PublishedCited by 1 opinion

Appeal from, the Lee District Court. The record in this case shows, that the parties appeared, and the cause coming on to be heard, a jury was regularly impannelled and sworn, “ and after some other proceedings, the plaintiff takes a non-suit.” Judgment was then rendered in favor of defendants, for costs. Afterwards, plaintiff moved to set aside said non-suit, because of 8 error in the instructions given by the , court to the jury, which motion was overruled.

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Appeal from, the Lee District Court. The record in this case shows, that the parties appeared, and the cause coming on to be heard, a jury was regularly impannelled and sworn, “ and after some other proceedings, the plaintiff takes a non-suit.” Judgment was then rendered in favor of defendants, for costs. Afterwards, plaintiff moved to set aside said non-suit, because of 8 error in the instructions given by the , court to the jury, which motion was overruled. Plaintiff appeals.

1Opinion of the CourtWeight, C. J.

— It is assigned for error: First, That the court below erred in excluding certain evidence; Second, In giving certain instructions; Third, In overruling the motion to set aside the judgment of non-suit, and reinstate the case.

Appellee first urges that plaintiff, having voluntarily submitted to a non-suit, he cannot assign for error, or have reviewed in this court, the rulings and decisions of the court below. _ And this position, we think, is correct, and decisive of the whole case.

The Code provides, that when there is no counter claim of defendant to be considered, the plaintiff may, at any…

2Cases cited3 opinions

  1. Root v. StuyvesantNew York Supreme Court · 1837
  2. The United States v. EvansSupreme Court of the United States · 1809
  3. Moore v. HerndonIndiana Supreme Court · 1839

3Cited by1 opinion

  1. Ryan v. Phoenix InsuranceSupreme Court of Iowa · 1927

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