Cooper v. McKeen

Elbert, J. 1. In the matter of appeals from the county court to the district court, section 500, General Statutes, provides that the “ appellate court shall consider and pass upon all objections to the pleadings and proceedings in the said cause which may have been made in the county court. * * * ” It does not appear in the case before us that the appellant had in any way called the attention of the district court, to which he had appealed, to his motion made in the county court, asking that the judgment by default be set aside on the ground that there was no service of summons. Having answered and gone to trial without calling the attention of the court to his motion made in the court below, he must be held to have waived it. 2. The permission given the plaintiff to amend his complaint by alleging a date when the claim sued upon became due was a matter entirely within the discretion of the court and in harmony with the spirit of the Code. We have examined the exceptions taken to the admission of evidence so far as our attention has been called to them in the argument of counsel, and we find nothing to justify a reversal of the judgment. We think the testimony excepted to was clearly in rebuttal. The record before us presents a case of conflict of testimony, upon which the jury has passed. We have examined the evidence carefully, and instead of its being insufficient to sustain the verdict, we are inclined to the opinion that the verdict is in accordance with the right of the case. The judgment of the court below is accordingly affirmed. Affirmed.