Hughes v. Ellison , 5 Mo. 110 ( 1838 )

McGirk, Judge,

delivered the opinion of the court.

This case was an attachment commenced before a justice of the peace of Cooper county, by Ellison against one Dobyns. Hughes interpleaded, and became thereby a party. Judgment was rendered against him; and he appealed to the circuit court,, where judgment was rendered against him; and he appeals to this- court. It appears from the record that issues were made between the parties, and a jury trial was had, and a verdict and judgment were found against Hughes. He then- moved for a new trial, and in arrest of judgment, both of which motions were overruled'. As to the arrest of judgment, we do not perceive any ground on- the record for that motion; and as to the new trial, the bill of exceptions does not show that all the testimony is preserved'. There may have been other evidence not on the record- which may make the verdict- right. For want, therefore, of the fact being stated in the- bill of exceptions, that all the evidence given is in the bill, we cannot look into that matter.

Unless a bill of exceptions purports to recite the whole evidence in a cause,, the ap. pellate court cannot undertake to say whether the court below should'have granted, a new trial or not. It is.error in- the court to instruct the jury to find for the defendant, such aninstruc.. tion virtually taking. the whole case from the jury.

The next point made is, that the court instructed- the jury to find for the defendant, which they did. Ellison by his counsel asked the- court to instruct the jury to.find as in case of a non-suit. Then the court instructed the jury to find for the defendant. This instruction, according to the opinion of this court in the case of Sibley v. Hood, took the whole case from the- jury. It is said that what was done here amounts to a demurrer to evidence. If it should be so considered, (which I- do not agree to,) yet; owing to the defect in the bill of exceptions in not stating what the whole evidence was, we cannot know how the matter should have been decided. But because the instruction was wrong, the judgment ought to be reversed; and the other Judges concurring herein, the-same is-reversed,, and remanded for a new trial.