Smith v. Dunklin County , 83 Mo. 195 ( 1884 )

Philips, C.

This is an action by plaintiff, Jacob Smith, to recover from defendant, Dunklin county, tke amounts alleged to be due and owing on certain bonds claimed to have been issued by tke county. Tke answer, after making special denials of tke allegations of tke petition, pleaded matters of special defence.- Muck evidence was introduced pro and con. by tke parties. No instructions were asked. or given. The cause was tried by the court sitting as a j ury. The bill of exceptions shows that at the conclusion of the evidence, the court took the case under advisement, and afterward announced that the bonds read in evidence, claimed to be the bonds of the county, were rejected, on the ground that they did not establish any indebtedness of the county as such, as they did not purport to be the bonds of the county. The bill of exceptions then recites that “thereupon the court rendered judgment against the plaintiff and in favor of defendant for his costs, holding that plaintiff was not entitled to recover on the evidence in the cause, to which plaintiff then and there excepted.”

It has been repeatedly held by the Supreme Court that under the present practice act, where the case, at law is tried before the court sitting as a jury, and no instructions are asked or given, and no exceptions saved, there is no error reviewable in this court, and the judgment of the circuit court should be affirmed; unless, perhaps, there should be no evidence at all to support the verdict. Miller v. Breneke, ante, p. 163, and authorities cited.

Equally well settled is it, that to enable appellant or plaintiff in error to avail himself of the errors of the trial court in admitting or rejecting evidence, the bill of exceptions must show that he excepted to the action of the court in admitting or rejecting the evidence complained of at the time. The bill of exceptions in this, case fails to show that the plaintiff excepted, at the time, to the action of the court in rejecting any evidence offered by him. But it shows that, after the court held that on the evidence the plaintiff was not entitled to recover and rendered judgment in the case in favor of defendant, “the plaintiff then and there excepted.” The exception was after verdict rendered and judgment given, by the express recital of the bill of exceptions. The exception fairly seems to be to the action of the court in rendering judgment for the defendant. As is said by Tompkins, Judge, in Randolph v. Alsey, 8 Mo. 657: “Exceptions to tke opinion of tke court must be taken in tke progress of tke trial, not after tke trial.” In Waldo v. Russel, 5 Mo. 393, tke plaintiff introduced several matters of evidence, tke last of wkick was a certain skeriff ’ s deed. After tke introduction of all tke evidence, an objection was interposed in tkese words: “To tke introduction of wkick to tke jury as evidence in tke above cause tke defendant ob j ected. ’ ’ It did not say “ to tke .introduction of all wkick evidence,” and tke court say: “Tke objection taken in a literal sense goes to tke introduction of tke deed only. ’ ’

In Steamboat v. Smith, 10 Mo. 527, tke only error complained of was as to tke giving and refusing of instructions. After tke court passed on tke instructions, tke bill of exceptions recited: “To wkick several decisions of tke court, tke defendant, by kis counsel, excepted at tke time.” Tkis was keld a good exception as to tke giving and refusing of instructions. It went to tke “several” rulings of tke court and covered all tke instructions. But in Mattingly v. Moranville, 11 Mo. 604, tke same learned judge keld tkat it is too late after tke verdict to except to tke giving of instructions. In Case Fogg, 46 Mo. 44, 47, tkere was a general exception at tke close of tke bill. Tke court keld it was too general and indefinite “to advise us of its application.” Tke court further say: “Tkere is notking tecknical in a bill of exceptions, but it must clearly and distinctly advise tke appellate court not only of tke proceedings before tke trial court, but of eack ruling of wkick appellant complains, and tkat suck ruling was excepted to at tke time. A party wiE not be permitted to lie by and let errors accumulate witkout objection, and, if ke is defeated upon tke main issues, to take advantage of tkem afterwards.” Tke case of Harrison v. Bartlett, 51 Mo. 170, is even more pointed. In tkat case, at tke end of tke bill of exceptions, it was stated tkat, “to all tke rulings, orders and judgment of tke court, tke defendant excepted.” The court held it was insufficient: “ The exception must be saved to the specific rulings in the progress of the cause.”

The bill of exceptions under review does not, as in the case last cited, even state that plaintiff excepted to all the rulings and judgment of the court; but it shows merely that after judgment for defendant the plaintiff excepted in the language “to which plaintiff then and there excepted.” This, according to the decisions cited, is not sufficient.

The judgment of the circuit court should, therefore, be affirmed.

All concur, except Hough, C. J., absent.