Bowman v. Stiles

34 Mo. 141

• Court: Supreme Court of Missouri
• Decided: July 15, 1863
• Status: Published

Opinion

Bates, Judge,

delivered the opinion of the court.

1. The wards of the plaintiff were competent witnesses. The action was not prosecuted for their immediate benefit. They could not control the suit or the judgment. If the plaintiff recovered, she would receive the sum recovered to be administered by her as part of the estate of the wards ; but the wards had no right to that particular sum as their own absolute property.

2. The objection to the evidence of statements made by Stiles after the dissolution of his partnership with Burns & Brothers, is not so preserved in the record as to enable us to know that the objection urged in this court was made in the Court below. (Clark v. Conway, 23 Mo. 438, and other cases.)

In fact, from-an examination of the record, it does notappear that at the time the evidence of Stile’s statements was given, any evidence had been given at all of the dissolution of the co-partnership.

3. The point that the set-off pleaded by the defendants was admitted by the pleading of the plaintiff, comes too late in this court. No such point was made in any manner in the lower court, and consequently no decision made thereon. (R. C. p. 1300, § 33.)

The defendants treated the plaintiff’s denial as putting in issue their claim to a set-off, and offered evidence in support of it.

No material error appears in the record, and the judgment is plainly for the right party. Judgment affirmed.

Judges Bay and Dryden concur.