Bray v. Kremp , 113 Mo. 552 ( 1893 )

Burgess, J.

This is an action of ejectment tried by the court sitting as a jury. The petition is in the usual form of an action of ejectment. The answer tendered the general issue. The court found the issue for the defendant and rendered judgment accordingly. From this judgment the plaintiff prosecutes his appeal.

Both parties claim from the same source of title— the county of Barton. On the trial the parties introduced evidence which tended to establish their respective theories of the case. No instructions were asked or exceptions saved. There were a number of conveyances of different kinds read in evidence by defendant, to some of which plaintiff objected at the time, but his objections were overruled, and he at no time saved his exceptions to the ruling of the court. There is, therefore, no point of law preserved for this court to review.

When parties desire to have the action of the trial court reviewed in the admission or exclusion of evidence over their objections in the trial of causes, they must save their exceptions at the time and make them part of the record by bill of exceptions. Nothing of that kind was done in this case.

Nor were any instructions asked or given. Had this been done and the plaintiff had asked proper instructions and they had been refused, or had he objected to improper instructions given on the part of defendant, and saved his exceptions, then there would have been something before this court for its consideration, but, as shown by the record, there is nothing of this kind.

If has been repeatedly held by this court, when the circuit court tries a case like this, sitting as a jury, that it will not weigh the evidence and determine whether or not the finding of the trial court was correct on the evidence. Harrison v. Bartlett, 51 Mo. 170; Miller v. Breneke, 83 Mo. 163, and authorities cited. It follows that the judgment must be affirmed.

All of this division concur.