Cleaver v. Webster

Mr. Chief Justice Walker delivered the opinion of the Court: It is urged that the court below erred in taking up and trying this case out of its order, and that the rule of court permitting a plaintiff to set a case for trial on a particular day, when his client shall file an affidavit that he believes the defense is made for delay, is prohibited by the constitution of 1870. But appellant did not object, so far as this record discloses, to proceeding to trial at the time and in the manner it was had. It appears that the case was called, the attorneys on both sides appeared, but no objection was interposed to taking up the case out of its order, but they proceeded to and tried the case. Under such circumstances, we must presume the objection now sought to be raised was waived, and the trial had with the consent of defendant. It may be, and the presumption is, that, had defendant objected to taking the case up at that time, the court would not have required defendant to proceed to trial. To have raised the question, defendant should have objected, and, had it been disallowed, he should have excepted and preserved it in the record. ■ The judgment of the court below must be affirmed. Judgment affirmed.