[4] We have held that misconduct in argument cannot first be raised by affidavits made a part of a motion for new trial. Hornish v. Overton, 206 Iowa 780, 785, 221 N.W. 483; State v. Hixson, 208 Iowa 1233, 1238, 227 N.W. 166; State v. Huckelberry, 195 Iowa 13, 17, 188 N.W. 587. Necessarily, then, it cannot first be raised by mere allegation in the motion for new trial, as was done in this case. [5] We recognize that the misconduct in argument may be so flagrantly improper and so evidently prejudicial that it may be considered by us even though no exception was taken at the time the remarks were made. Hall v. Wolff, 61 Iowa 559-563, 16 N.W. 710; State v. Peirce, 178 Iowa 417, 443, 444, 159 N.W. 1050; Whitsett v. Chicago, R.I. P. Ry. Co., 67 Iowa 150, 160, 25 N.W. 104; State v. McIntyre, 203 Iowa 451, 456, 212 N.W. 757; State v. Browman, supra, 191 Iowa 608, 639, 182 N.W. 823. But the misconduct complained of in this case is not of that character.

If the defendant desired other and additional instructions, they should have been requested. Brennan v. Nolan, 209 Iowa 922, 229 N.W. 321; Hornish v. Overton, 206 Iowa 780, 221 N.W. 483; Ingebretsen v. M. St. L.R.R. Co., 176 Iowa 74, 155 N.W. 327; Sergeant v. Challis, 213 Iowa 57, 238 N.W. 442. In Sergeant v. Challis, 213 Iowa 57, loc. cit. 65, 238 N.W. 442, 446, we said:

This court has held that misconduct of counsel in an unreported argument to the jury must be preserved by a bill of exceptions and certified by the court. Hornish v. Overton, 206 Iowa 780, 785, 221 N.W. 483, 485 (1928). That was not done here.

[2] Appellant further claims that, assuming it was not a good defense, plaintiff waived its sufficiency by failing to attack it in the trial court. This court has frequently approved the rule that if matter pleaded as a defense is not challenged by motion or demurrer or otherwise, it will, if proven, defeat the plaintiff's action, though had the question been properly raised the answer would have been held to present no defense. Strand v. Bleakley, 214 Iowa 1116, 243 N.W. 306; Hornish v. Overton, 206 Iowa 780, 221 N.W. 483; Fairley v. Falcon, 204 Iowa 290, 214 N.W. 538; Ormsby v. Graham, 123 Iowa 202, 98 N.W. 724. [3] Plaintiff did not attack the defense by motion or demurrer.

The appellant made no request for amplification of the instruction and appellant can not now successfully assert that a correct instruction lacks amplification when he failed in the trial court to request such amplification. See Brennan Cohen v. Nolan Laundry Co., 209 Iowa 922; Hornish v. Overton, 206 Iowa 780; Ingebretsen v. Minneapolis St. Louis R. Co., 176 Iowa 74; Ann. to Code of Iowa, pages 1436 and 1437, and numerous cases there cited. These numerous cases all announce that a correct instruction, but not as explicit as counsel would like to have it, is sufficient in the absence of a request for amplification. It is thus apparent that the appellant is in no position to now attack the instruction.

An attorney for the party has been held not to be a bystander. Hornish v. Overton, 206 Iowa 780. If an attorney is not a bystander, merely because he is a representative of the parties, it is obvious that they themselves are not bystanders. State v. Jones, 102 Mo. 305 (14 S.W. 946); Gay Oil Co. v. Akins, 100 Ark. 552 (140 S.W. 739); Walker v. State, 88 Tex. Cr. 389 ( 227 S.W. 308); Hunt v. State, 89 Tex. Cr. 89 ( 229 S.W. 869). Without the necessary bill of exceptions, therefore, we are compelled to rely upon the record as set forth in the remaining abstract and the amendment thereto. The amended abstract supports the trial court's findings concerning appellants' agreement that the copy of the contract was true and correct.

See Hornish v. Overton, make record. 206 Iowa 780, 1. c. 785. 4. Lastly, appellant challenges the judgment entered as excessive. This contention is of no avail. The defendant was sentenced under the Indeterminate Sentence Law. 4. CRIMINAL The period of time which the defendant will LAW: new serve in the penitentiary is dependent upon the trial: subsequent action taken by the board of parole.

We note an attorney for a party does not qualify as a bystander under rule 241. See Hornish v. Overton, 221 N.W. 483, 485, 206 Iowa 780, 785 (1928) (deciding issue under predecessor statute to rule 241) (citations omitted); Rudd v. Jackson, 213 N.W. 428, 203 Iowa 661 (1927) (same); cf. Millis v. Hute, 587 N.W.2d 625, 630 (Iowa App. 1998) (declining to extend rule 241(c) to permit the parties to the litigation to serve as `bystanders'). However, no objection was lodged to this affidavit below.