Auckland et al. v. Lawrence

[No. 2337.] Auckland et al. v. Lawrence. Appellate Practice — Instructions—Exceptions. • Assignments of error based on the giving of instructions will not be considered where the abstract of record does not show an exception in the lower court to the instructions complained of. Appeal from the County Court of Otero County. Mr. Feed A. Sabin and Mr. R. S. Beall, for.appellants. Mr. O. Gr. Hess, for appellee. [MAJORITY — GrUNTEH, J.] GrUNTEH, J. Action to recover damages through overflow of irrigating ditch; trial to jury; verdict for appellee (plaintiff) for $1.00 damages; judgment in accordance with verdict; therefrom this appeal. A motion has been filed to dismiss the appeal -which, we find unnecessary to decide. We confine the opinion to such assigned errors as are discussed by appellants — Bartholomew v. Yankee, 30 Colo. 361, 70 Pac. 415. Appellants contend that the evidence is insufficient to sustain the judgment. There is substantial evidence to support the judgment; this is a sufficient reason for our declining to disturb it on the objection, insufficiency of evidence. Error is urged in the giving of instructions 2, 9 and 10. An exception in the lower court to an instruction is essential to a consideration of alleged error therein; such exception should appear in the abstract. — Means v. Gotthelf, 31 Colo. 168, 71 Pac. 1117; Merriner v. Jeppson, ante 218; Brennan Merc. Co. v. Vickers, 31 Colo. 324, 73 Pac. 46; Gerspach v. Barhyte, 17 Colo. App. 489, 68 Pac. 1057. The abstract does not show an exception to the instructions complained of; it simply shows exceptions to “certain instructions.” Judgment affirmed. Affirmed. ■