Delaney v. Lee , 1868 Ky. LEXIS 442 ( 1868 )

Opinion oe the Oourt by

Judge Peters:

The evidence is conflicting and if it can be said to preponderate in favor of appellant, the preponderance is not so great certainly as to authorize this court to interfere, and award a new trial on that ground after a motion therefor had been overruled by the circuit court.

Nor can we decide that the judgment was against the law; only one instruction was given to the jury, which was acquiesced in by both parties, as no exception was taken to it, and it properly presented the legal proposition involved in the issue.

But it is insisted that the court below erred to the prejudice of appellant in admitting incompetent and illegal evidence to go to the jury, notwithstanding his objections. The evidence complained of is an affirmative answer to a question propounded to the witness Gilchrist by appellee, in substance as follows: Whether in his opinion from his occupation as a farmer, habits of observing stock, and opportunity as a neighbor of appellant, if tbe mule in controversy bad been-at tbe farm and in possession of appellant as early as October, or November, 1862, be would not have known it, before August, 1863, tbe time be first saw it.

Hughes, for appellant. ■ Rodman, Geiger, for appellee.

Tbe objection is rather to tbe mode of interrogation, than to tbe answer; if tbe witness bad been asked directly whether be would not have known tbe fact, if tbe mule bad been in possession of appellant as early as October, or November, 1862, from tbe opportunities be bad of being informed on tbe subject, etc. Omitting tbe words in tbe question (“In your opinion”) and tbe witness bad answered Yes in my opinion I would, or I believe I would, in that presentation of tbe question, and answer there is no doubt that tbe question would have been unobjectionable, and tbe evidence competent; and this is tbe substance and effect of tbe evidence scrutinized, and understood, and it would be hypertechnical to reverse a judgment on such grounds.

But furthermore, section 372 Oiv. 0. provides that tbe application for a new trial must be made by motion upon written grounds, filed at tbe time of making the motion, &c.

This section as we understand it, requires all tbe errors which tbe party complaining deems to have been committed prejudicial to him in tbe progress of tbe trial, must bo presented in writing as grounds for a new trial, in order to direct the attention of tbe court to the alleged errors, so as to have them corrected there, if tbe court should become convinced upon further reflection that errors bad been committed, from which it would seem that unless tbe alleged errors were thus presented as ground for a new trial, they should be regarded as waived. But whether that be tbe proper interpretation of the section of the Code referred to we need not here decide, since there seems to be no error in the ruling of tbe court complained of. Wherefore, tbe judgment is affirmed.