Skaggs v. Given

Ellison, J. Plaintiff sued the defendant before a justice of the peace of Maries cqunty on an account. On return day, the defendant filed as an offset an account larger than plaintiff’s, which had been assigned to him by one M. Griven. The cause was appealed to the circuit court. The evidence was conflicting in regard to the merits of the claim and offset. The material point was, as to whether the account filed by appellant as an offset was assigned to Mm before or after the commencement of the suit in the justice’s court. Upon this point the evidence was likewise contradictory. The court, against the objection of appellant, gave, at the request of respondent, the following instruction: “ The court instructs the jury that if they believe, from the evidence, that the offset in defendant’s counterclaim was assigned to defendant after the filing of plaintiff’s cause of action in the justice’s court, then they will disregard said offset in arriving at a verdict.’y This was the only instruction given In the case, and the case was then argued. In his opening speech before the jury, counsel for plaintiff called their attention to the fact that plaintiff had recovered judgment before the justice for more than twenty dollars; that Griven was the appellant and had brought the suit to this court.. Appellant’s counsel objected to the statement. The judge rebuked him for the language, and told him he had no fight to make such a statement to the jury. In his closing argument to the jury, plaintiff’s counsel made use of the following language, while the judge was off the bench and in one corner of the courthouse reading : “This case was tried before ’Squire Ammermann, and he gave judgment against the defendant for more' than twenty dollars, and he has appealed the case here. Again, he appealed to the jury to affirm what had been done in ’Squire Ammermann’s court, and not-to set aside ’Squire Ammermann’s verdict.” That after the615 case was argued, and while the clerk and counsel for appellant were trying to separate the papers so as to give the jury only the account sued upon and the offset and counter-claim, plaintiff’s counsel remarked in the presence and hearing of the jury, “ that he wanted all the papers to go to the jury so that the jury could see them all — that there were papers there that the defendant was afraid for the jury to see.” The instruction given by the court was unquestionably correct under section 2916, Revised Statutes. The principal point relied upon for reversal was the alleged misconduct of plaintiff’s attorney. The first remark was objected to and was cured by the rebuke from the court. The other remarks, it will be seen, were passed by unnoticed by defendant’s counsel. No objection was made to them, nor was any exception taken to any of the remarks, including the first, unless calling attention to them in the motion for new trial be regarded as such exception. ■ It is held in State v. Forsythe, 89 Mo. 667, that the trial court’s attention should be called to improper remarks of counsel and objection made and exception taken at the time of their occurrence ; that such objection is matter of exception as other matters transpiring at the trial; and that it is too late to object for the first time in the motion for new trial. The fact that the court was not on the usual seat, but off in a corner of the room, did not prevent or excuse defendant from calling attention, making objection, or taking exception. We regard the cases cited in plaintiff’s brief and that of State v. Forsythe, as conclusive on us, however the question may have been decided in other states. The judgment is affirmed. All concur.