#### Clem B. Achenbach et al. v. John M. Pollock.

Filed April 2, 1902.

No. 10,506.

1. Reversal of Judgment: Motion for New Trial. A judgment will not be reversed for errors wbieli are required to be assigned on a motion for a new trial, unless it is alleged in the petition in error and shown by the record that the court erred in overruling such motion.

3. Verdict. Verdict examined, and *held*sufficient to support the judgment rendered thereon.

Error from the district court for Lancaster county. Tried below before Hall, J.

*Affirmed.*

*Billingsley & Greene,*for plaintiffs in error.

*Kirkpatrick & Hager, contra.*

*437Albert, C.

This is an action in replevin. There was a trial to a jury, which resulted in a verdict for the plaintiff. From a judgment rendered thereon, the defendants prosecute error to this court.

All assignments of error, save one, which will he noted presently, are predicated on the rulings of the trial court, which are required to he brought, and which were thus brought, to its attention by motion for a new trial. The ruling of the court on that motion is not complained of in the petition in error. Such being the case, the question arises whether the failure to assign error on tire ruling of the court on the motion for a new trial precludes an examination of such errors here. This court has twice passed on that question. In *Chicago, B. & Q. R. Co. v. Cass County,*51 Nebr., 369, in an opinion by Ragan, C., it was held that such errors would be reviewed, notwithstanding such omission. No authorities are cited in support of that opinion. In *James v. Higginbotham,*60 Nebr., 203, in an opinion by Sullivan, J., a contrary conclusion was reached. So the question is still an open one in this state. In our opinion, the latter case states the correct rule, and is fully sustained by the authorities there cited. The defendants are here seeking to reverse the judgment of the trial court. It is but fair to assume that they are satisfied with every ruling of which they make no complaint. They make no complaint of the ruling on the motion for a new trial. In other words, they are satisfied with that ruling. If they are satisfied with that ruling, then they must be held to have waived every error assignable in such motion. *Lowrie v. France,*7 Nebr., 191; *Murray v. School District,*11 Nebr., 436.

It may be suggested that the assignment that the court erred in overruling the motion for a new trial is covered by an assignment in detail of the rulings complained of in such motion. With equal truth could it be said that, having taken an exception to each of such rulings, an excep*438tion to the ruling on the motion for a new trial is superfluous. But this court has held otherwise, in the two cases last cited. Both suggestions are based on the assumption that, if any of the rulings complained of in the motion were erroneous, it necessarily follows that an order overruling such motion is also erroneous. That this is not true, is obvious. The motion may have been fthed out of time. Errors in the progress of the trial may have been subsequently waived. There may have been an improper joinder of parties to the motion, or other reasons to justify the court in overruling it. If so, whatever the intrinsic merits of the motion, none of the rulings therein complained of can be successfully urged in this court as .grounds for reversal. Hence, were every ruling, which is required to be brought to the attention of the trial court by motion for a new trial, assigned in the petition to this court, yet, in the absence of complaint of the ruling on such motion, the presumption of regularity in the proceedings of the trial court is not negatived. To our minds it is clear that a failure to complain in the petition in error of the imling on the motion for a new trial precludes an examination of the rulings made by the trial court during the progress of the trial. That such assignment is rarely omitted clearly indicates that the profession regards it as essential.

This leaves us but one question to determine, and that is whether in this case the verdict is sufficient to support the judgment. The verdict is as follows:

> “The jury duly impaneled and sworn in the above entitled cause do find that at the time of the commencement of this action the right of possession of the property in controversy herein was in the plaintiff, and we assess the damages sustained by the plaintiff by reason of the wrongful detention of said property by the defendants at the sum of four hundred and twenty-five dollars.”

The judgment rendered on the foregoing verdict is as follows:

> “It is therefore considered and adjudged by the court *439* * * that the said plaintiff John M. Pollock do have and recover of and from the said defendants Clem B. Aehenbach' and the Nebraska School Supply Company, the sum of $425 damages as assessed by the jury, with interest thereon at the rate of seven per cent, per annum, from this date until paid, /together with costs of this action taxed at $145.83.”

Considered apart from the other errors assigned, as we are compelled to consider it, for the reasons hereinbefore stated, there is nothing in the verdict of which the defendants should be heard to complain, in view of the record. There are other findings which the plaintiff might have insisted on, but such omissions, if they exist, are to the advantage, instead of the detriment, of the defendants. So far as the jury speak by their verdict, they find the right of possession in the plaintiff, and the amount of damages he sustained by reason of the wrongful detention of the property. That finding is amply sufficient to support the judgment in this case. But the defendants insist that there is no law under the statutes of Nebraska providing for any other judgment than one for the defendants. This contention is based on the peculiar wording of section 192 of the Code of Civil Procedure, which is as follows: “In all cases, when the property has been delivered to the plaintiff, where the jury shall find for the plaintiff, on an issue joined, or on inquiry of damages upon a judgment by default, they shall' assess adequate damages to the plaintiff for the illegal detention of the property;, for which, with costs of suit, the court shall render judgment for defendant.” It will be observed that the last word, “defendant,” was evidently intended for “plaintiff,” and it has been so held in *Blue Valley Bank v.*Bane, 20 Nebr., 294, 300. But it is urged that said section, and the one immediately following it, in so fardas they authorize any other judgment than one for the defendants in the court below, is in contravention to section 11 of article 3 of the constitution, and therefore void. It is not necessary to go into the constitutionality of these sections at this late *440day. Under our system of jurisprudence, if there were no statute whatever on the subject, the finding of the jury in this case would he amply sufficient to warrant the judgment of the trial court.

It is recommended that the judgment of the district court be affirmed.

Duffie and Ames, 00., concur.

By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is

Affirmed.