Cunningham v. Porterfield

BRown, President. At the trial the plaintiff, who had brought debt on a bond to him as administrator, was introduced as a witness under the statute, code of 1860, page 724, section 19, to prove the execution of the bond. The defendant by his counsel objected to his admissibility. The witness was then sworn and examined on the voir dire, after which the defendant’s counsel stated, that if the witness was regarded as competent he must submit, and thereupon the witness was sworn and examined in chief, without further objection. ÜSTo exception was taken, or notice of intention to do so before the jury retired. After verdict and judgment the defendant moved the court to set aside the verdict and judgment and grant him a new trial, upon the ground of inadmissibility in the witness, which motion was overruled. The only question is, was the failure to except to tine opinion of the court, admitting the witness to testify in chief, a waiver under the circumstances of the objection first made or not? That such objection if relied on should have been saved by exception, or notice of intention to except, before the jury retired, is settled by the case of Nadenboush vs. Sharer, 2 West Virginia, 286; 15 Gratt., 122. And the reason is obvious, if the objection had been saved by exception, the plaintiff might have proved the same facts by other witnesses, and thus have avoided the objection. I think, therefore, that there was no error in refusing to set aside the verdict. But that the judgment should be affirmed with costs and damages to the defendant in error. The other judges concurred. Judgment affirmed.