Clark v. Conway

RylaND, Judge, delivered the opinion of the court. The principal points in this case were heretofore settled by this court in the case of Clark v. Maguire (16 Mo. 302). [442] The construction of the various deeds and powers now again presented was had in that case. We are fully satisfied with the correctness of the principle laid down then by this court. So far as new points have arisen, we will now consider and settle them. First, as to the admission of the deed from Alexander to the plaintiff. The appellant contends that the execution of this deed was not proven. Now, in looking over the record, we find that the defendant below, the appellant here, made objections to the assignment made by Henry D. Bacon on the lease from William M. Tompkins to said Bacon, which had been read in evidence, “ on the ground that the same was illegal and incompetent ;” made also the same objection to the deed signed by J. H. Alexander, Amira Marks and Luther C. Clark, “ on the ground that the same was incompetent and illegal testimony;” made also the same objection to the power of attorney of Amira Marks and Luther C. Clark to Dennis Marks, “ on the ground that the same was illegal and incompetent testimony.” Before this court the appellant specifies the objection, and contends that the execution of the deed and power of attorney was not proven. • The objection can avail nothing in this court. Its generality is fatal to it. We will give no countenance, no ear, to an objection made for the first time in this court, when, if it had been made below, it could have been immediately obviated by proof. The decisions of this court, for many years, sustain this view. The party objecting to the admission of a deed, power of attorney, or other instrument of writing, during the trial of a cause in the lower courts, must point out the specific objection ; “he must put his finger on it,” in the language of some of the courts, so that the court below can at once see it, and the adverse party have the opportunity of obviating it by means in his power then present; and if such objection, specific and pointed, be not made below, it shall avail nothing here. The objection is “ on the gi’ound of being incompetent and illegal evidence”— no more specific than to say, “ I object to the evidence.” It was the duty of the objector to say why and for what reason it [443] was incompetent — why, and for what cause, illegal. The proof of execution, in all probability, was at hand, and therefore the want of it not pointed out below. But it matters not whether it could have been obviated, if made below or not; the party intending to rely on it must not content himself with a general objection below, and then make a special, pointed objection for the first time in this court. So much for this point. It is ruled against appellant. The instructions given by the court, especially the one on its own motion, and those on the defendant’s motion, put the law of the case fairly before the jury, — indeed the defence, under these instructions, went to the jury with its full strength. There is no error committed in refusing those which the court did refuse to give on defendant’s motion. We consider the law of the case properly settled, when first before us, as reported in 16 Mo., in regard to the various deeds and instruments of writing. The instructions put the law arising on the proof before the jury in this case fairly before them, giving the full benefit of the defendant’s defence. With their verdict the lower court was satisfied, and we see no sufficient reason to reverse it. Let it be affirmed ; the other judges concurring.