Brown v. Mincey

269 S.W.2d 245, 1954 Ky. LEXIS 979

Opinion

CLAY, Commissioner.

This case was practiced, tried and appealed under the Civil Code. The only ground for reversal asserted by appellants is alleged error in the instructions.

In appellants’ motion and grounds for a new trial they did not assert error in the instructions. The long settled rule under the Civil Code was that the failure of a party to challenge the instructions in his motion and grounds for a new trial constitutes a waiver of that objection and-the question cannot be raised in this Court for the first time. Jarboe v. Shane, Ky., 1953, 254 S.W.2d 695.

It may be noted that under the new Kentucky Rules of Civil Procedure the principle stated above is no longer applicable to the question here presented. See CR 59.06.

The judgment is affirmed.