Miller v. Murphy

This is an appeal by the defendant John Murphy from a judgment in favor of the plaintiff in the sum of $600. The complaint sets out two causes of action; the first count alleges an express contract to pay the sum of $500, the second alleges the reasonable value of services rendered in the same amount. The cause was tried by a jury. Upon the conclusion of the testimony for plaintiff the court granted a nonsuit as to the defendant Nora Murphy upon both counts of the complaint, and also granted a nonsuit as to the defendant John Murphy upon the second count. The trial thereupon proceeded against the last-named defendant upon the first cause of action, and judgment thereon was rendered as above stated.

Appellant’s first claim of prejudicial error is based upon alleged misconduct on the part of counsel for plaintiff. In his opening statement to the jury counsel used the following language: “ . . . and Mr. Murphy still withheld paying Mr. Miller, and we filed suit for it, and Mr. Murphy, through his attorney, demanded a jury trial, which we waived, and that is why we are here today.” The attention of the trial court was not called to this statement, nor was it assigned as error, nor…