Magehan v. Orme

7 Mo. 4

• Court: Supreme Court of Missouri
• Decided: May 15, 1841
• Status: Published

Opinion

Opinion of the Court by

Napton, Judge.

This was an action of assumpsit brought by the plaintiffs below .against defendant, upon the common counts. The pleas were non-assumpsit and set-off. Replications were not filed until the third term after the pleas were put in. The plaintiffs had judgment, and defendant moved for a new trial, which was overruled. He then appealed.

The bill of exceptions does not preserve any of the testimony of the case, but shows that a certain deposition was offered to be read in evidence by defendant, and was objected to by plaintiffs, and rejected by the court, to which opinion of the court the defendant excepted.

Only two points have been raised on this record. It is first objected, that the replications were improperly filed; and, secondly, that the deposition was improperly excluded.

Our statute requires replications to be filed within thirty days of the commencement of the term at which the defendant is bound to appear. In this case the statute was not complied with; but no objection seems to have taken to the filing of the replications, and no motion was made for a judgment of non-suit against the-plaintiff. It is too late to raise the objection here.

In relation to the exclusion of Dowling’s deposition, this court has nothing on the record to rebut the le^al tion in favor of the correctness of the action of the circuit court. It is not specified what objections were made to this deposition, nor can its relevancy or irrelevancy be ascertained, none of the testimony being preserved in the bill of exceptions.

Unless of testimony is preserved in a exceptions, court will presume that the judgment of the circuit court, in the admission or exclusion of evidence, is correct.

Judgment is therefore affirmed.