Opinion filed May 2, 1933.
New Trial — Grounds of Motion To Set Aside Verdict Involving Court's Discretion — Use of Transcript Limited to Purpose for Which It Is Made Controlling — Question Not Raised Below — Inadequate Briefing — Presumptions.
1. Motion to set aside verdict as contrary to evidence and against evidence and weight thereof is addressed to sound discretion of trial court, whose action thereon cannot be disturbed except for abuse of discretion.
2. Where bill of exceptions made transcript controlling only as to exceptions taken by plaintiff during trial to admission and exclusion of evidence, it could not be used in determining motion for directed verdict involving interpretation of evidence.
3. Transcript referred to for designated purpose will not be considered for other purposes.
4. Where question that there was no evidence to sustain verdict was not raised below, Supreme Court will not consider question, although briefed.
5. Where motion to set aside verdict involved interpretation of evidence, and excepting party failed to make reference in brief to evidence he deemed material as required by Supreme Court rule 8, par. 5, Supreme Court will not consider matter.
6. Supreme Court will not search record to discover reversible error.
7. Error is never presumed, and burden is on excepting party to make it appear.
ACTION OF TORT. Plea, general denial. Trial by jury at the April Term, 1932, Franklin County, Buttles, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted to the overruling of his motion to set the verdict aside. The opinion states the case. Affirmed.
Albert W. Butler, pro se. Harold C. Sylvester, for the defendant.
Present: POWERS, C.J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.
This is an action of tort for the conversion of certain personal property. There was a trial by jury and a verdict and judgment for the defendant. The plaintiff excepted to the overruling of his motion to set the verdict aside.
The first two grounds of the motion are that the verdict is contrary to the evidence and against the evidence and the weight thereof. These grounds were addressed to the sound discretion of the trial court, as to which the action of the court cannot be disturbed, except for abuse of discretion. Wellman, Admr. v. Wales, 97 Vt. 245, 249, 122 A. 659; Temple v. Atwood, 99 Vt. 434, 134 A. 591; Porter v. Fleming, 104 Vt. 76, 82, 156 A. 903. It is not claimed here that the court withheld or abused its discretion. The third ground of the motion is waived because it is not briefed. Foss v. Sherwood, 104 Vt. 141, 144, 157 A. 834; Town of Brattleboro v. Carpenter, 104 Vt. 158, 166, 158 A. 73.
The other six grounds of the motion involve an interpretation of the evidence, but that is not before us for such purpose. The bill of exceptions makes the transcript controlling only as to the exceptions taken by the plaintiff during the trial to the admission and exclusion of evidence, none of which have been briefed. A transcript which has been referred to for designated purposes will not be considered for other purposes. Plant v. Ahlberg, 104 Vt. 16, 18, 156 A. 535, and cases cited.
The plaintiff has briefed the question that there is no evidence in the case to sustain the verdict; but, as that question was not raised below, it will not be considered here. Barre Trust Co. v. Ladd, 103 Vt. 392, 416, 154 A. 680.
But, even if the transcript was before us on the questions raised by the plaintiff, the result would be the same, as he has made no reference in his brief to the evidence he deems material, as required by Supreme Court rule 8, par. 5. Bloomstrand v. Stevens, 104 Vt. 1, 5, 156 A. 414. This Court will not search the record to discover reversible error. Error is never presumed; and the burden is on the excepting party to make it appear. Higgins, Admr. v. Metzger, 101 Vt. 285, 298, 143 A. 394; Conn Boston Co. v. Griswold, 104 Vt. 89, 96, 157 A. 57; Town of Brattleboro v. Carpenter, 104 Vt. 158, 175, 158 A. 73; West Rutland Trust Co. v. Houston, 104 Vt. 204, 209, 158 A. 69; Andrews v. Aldrich, 104 Vt. 235, 237, 158 A. 676. The plaintiff has not sustained that burden.