Banks v. Lades

39 Mo. 406

Opinion

Fagg, Judge,

delivered the opinion of the court.

An inspection of the record in this case shows that it was tried in the Circuit Court for Osage county, at its May term, 1864. There was a verdict and judgment for the defendant in error, and the case brought to this court by writ of error, without first having filed a motion for new trial, or moved in arrest of judgment.'

It is not deemed necessary to review the cases heretofore decided by this court, involving the question as to whether the errors of the court below will be considered here, unless an opportunity shall first have been given to the lower court to correct them by a motion for new trial. In the case of State v. Marshall, 36 Mo. 400, the former adjudications of this court upon that subject were carefully considered.

The distinction between the cases decided after the adoption of the practice act of 1849, and those which preceded it, was stated, as well as the reasons for the conclusions that the necessity for this motion had been revived by the new practice act of 1855. It is unnecessary to repeat those reasons here. The court will adhere to its decision in that case, unless the statute shall be so altered as to dispense with the necessity of filing such a motion.

The other judges concurring, the judgment will be affirmed.