Cahill

This is an appeal by the defendant from an order denying her motion for a new trial. The suit was brought to recover the sum of $1,500 alleged to be due to the plaintiff’s assignor, of which amount the principal item was a charge of $1,000 for services in a suit brought against the defendant here by her daughter, Mrs. Baldwin, to recover *62 stock transferred by her to her mother. The jury found for the plaintiff in the sum of $925, for which judgment was entered. The grounds urged for reversal are: Misconduct of the jury, the specific form of the objection being that the assent of the jurors, or of one or more of them, was induced “by a resort to the determination of chance”; remarks made by the judge in the course of the trial claimed by the appellant to have evinced a prejudgment of the case, and to have prejudiced the jury; the exclusion of certain testimony; and error in instructing and failing to instruct the jury.

1. To the first point the preliminary objection is made that the affidavits relied on are not incorporated in a bill of exceptions, as required by rule 29 ( 64 Pac. xii ) of this court. But, under the view we take of the case, it will be unnecessary to consider…