Pogue v. State ex rel. Harbin

HYLAND, J. In looking into the record and proceedings in this case, as well as into the hill of exceptions, I find no motion made for a new trial — no exceptions taken to any instructions given or refused by the court below. I find from the record, a motion was made by defendant to rule the plaintiff to give bond and security for the costs of this suit. This was overruled. The defendant then moved to quash the writ, because its recitals were in the present instead of the past tense ; also, because the sheriff had not properly served the same on the defendant. This' motion was overruled, and the defendant excepted to the opinion of the court in overruling this motion, and tendered his bill of exceptions. There is no error in the action of the court in overruling the motion to quash the writ. The defendant had already appeared to the writ, and moved to rule the plaintiff to file bond with security for costs of the suit. The second bill of exceptions only preserves the action of the court in rejecting certain evidence offered by the defendant. Under the repeated decisions of this court, the defendant was bound to have made his motion for a new trial, in order to avail himself of the errors, if any had been committed by the court below, in thus excluding or rejecting testimony, or in giving or refusing to give instructions. It nowhere appearing in the record, that any motion was made for a new trial, the judgment below must be affirmed. See Watson v. Pierce, 11 Mo. R. 358; Rhodes v. White, 11 Mo. R. 423; Stevens v. Sexton, 10 Mo. R. 31; 10 Mo. R. 515, Floersh v. Bank of Missouri.