McDonald v. Cobb , 44 Mo. App. 167 ( 1891 )

Thompson, J.

This action was commenced before a justice of the peace to recover the price, agreed to be paid by the defendant to the plaintiff for recovering a horse which had been taken from the defendant by a third person, and carried away. On trial in the circuit court before a jury, there was a verdict and judgment for the defendant. The plaintiff, appealing to this court, assigns the following errors: “ First. The verdict and judgment are against the law. Second. . The judgment is not responsive to the pleadings and the evidence, and should have been for the plaintiff. Third. The court erred in giving the second instruction, as asked by the defendant.”

The first and second assignments of error present nothing for review, as the verdict and judgment are quite consistent with the pleadings and the evidence.

' The third assignment of error is the only one which is argued by the appellant. As no objection was made to the instruction, and as no exception was saved to the action of the trial court in giving it, this assignment of error presents nothing for review. This court never held, as appellant states it did, in Beck v. Dowell, 40 Mo. App. 71, “that the mere failure of a party to expressly save an exception to an adverse ruling should not debar such party from assigning error of such ruling, but that an exception should be presumed.” That is merely the reporter’s condensation of certain observations, made by one of the judges of this court in his dissenting opinion in that case. But the observation of the dissenting judge in that case went no further than to express a doubt, whether, in view of the well-known practice in the country, it is necessary to save an exception to adverse ruling, where, as in that particular case, an objection was made. A majority of the judges of this court did not agree with that view. It is to be added that none of the judges of this court have ever taken the view that a party can assign errors in a’n appellate court on a ruling, where no objections were made and no exceptions saved in the trial court. The reason is obvious. It is the duty of parties to bring the attention of the trial courts to their errors, in order that they may have an opportunity to correct them, and thereby save the costs and expense of appeals and writs of error.

As there is nothing to review upon this record, the judgment is affirmed.

All the judges concur.