Powell v. Feeley

Mr. Justice Walker delivered the opinion of the Court: It has been so long and so frequently held by this court, that in a suit before a justice of the peace, the pleadings being oral, a party is entitled to recover if he established any cause of action of which the justice of the peace had jurisdiction, and this, too, by whatever name he may call his action, that we deem it unnecessary to discuss the question raised on the first of appellee’s instructions. It could not matter.if he, in his account, did say that appellant was' guilty of fraud in the purchase of the wheat. That did not deprive appellee of proving that appellant owed him for the wheat. To so hold would render trials before justices of the peace highly technical, where the legislature has properly intended to dispense with all technicality. It does not matter by what name a plaintiff in that court designates his action, if he but proves a cause of action falling within the jurisdiction of the justice. Only a part of the instructions are set out in the abstract, but we have referred to the record, and there find that the same instruction, in slightly a different form, was given, as that which the court refused to give for appellant, and numbered five in the series. A careful examination of all the instructions given, shows that they fairly presented the case to the jury. It is urged, that the circuit court erred in directing the jury when they retired to consider of their verdict, that when they agreed, they could reduce it to writing, seal it, deposit it with ■ the clerk, and then be discharged from further attendance on the court during the term. It nowhere appears that appellant interposed any objection to this direction of the court. Had appellant objected to it, he should have made it known to the court, and if not allowed, he should have preserved his objection in a bill of exceptions. It was. his right to have the jury polled if he had not waived it. But failing to object to the course pursued by the court, he waived the right, and can not raise it for the first time in this court. A party has no right to stand by and permit steps to be taken in his case without objection, and if the result does not favor Ms interest then raise objections. An attentive examination of the evidence satisfies us that it sustains the verdict. It is only in cases where the verdict is manifestly against the evidence that tMs court will disturb the finding of a jury. Such is not the case on this record, and the judgment of the court below must be affirmed. Judgment affirmed.