McClung v. Folkes

Citations

• 122 Va. 48
• 94 S.E. 156
• 1917 Va. LEXIS 83

Syllabus

<p>1. Appeal and Error-Harmless Error-Case at Bar.-There were three trials of the issue in the instant ease. At the first trial there was a verdict for the defendant, which the court set aside on the motion of the plaintiff, because contrary to the evidence, and. the defendant excepted. At the second trial there was a hung jury. At the third trial there was again a verdict for the defendant, which the court refused to set aside. At the last trial the court refused to receive certain evidence offered by the defendant to show different corners and lines from those set, up at the first trial, unless the defendant would waive his bill of exception to the a-.ction of the court in setting aside the first verdict; the court being of opinion that the should- not be allowed to insist that the first verdict was right and then offer evidence to show that it was wrong. The defendant waived his exception under protest, and to the action of the court in compelling him to make - such waiver. This action of the trial court was assigned as error by the' defendant.</p> <p>Held; That it was unnecessary to pass upon the question. Both verdicts were in favor of the defendant, and in the appellate court he vigorously insisted on the correctness of the last and asked that the judgment on the last verdict be af. firmed. As the Supreme Court of Appeals was of opinion that he was right in his contention that the judgment should be affirmed, he could not have been hurt by his waiver though made.</p> <p>2. Appeal and Error-Reversal-Rule as on Demurrer to no exception was taken to the granting or of instructions, and no objection was made in the Court of Appeals to the ruling of the trial court on the admission or rejection of evidence, the sole errors assigned the refusal of the court to set aside the verdict as to the evidence, and the judgment against the plaintiff for the entire costs of the litigation, the judgment must be sustained, if there is evidence to support it. It is insufficient t