Mahan v. School District No. 1

29 Mo. App. 269, 1888 Mo. App. LEXIS 80

Opinion

f Romraubr, J.,

delivered the opinion of the court.

This cause was tried by the court without the intervention of a jury, partly upon an alleged statement of facts and partly on evidence adduced by plaintiff. The trial resulted in a judgment for plaintiff.

The defendant, appealing, assigns for error, that the agreed statement of facts and evidence adduced by plaintiff, were not sufficient to warrant the judgment rendered. This exception is not properly before us, as no motion for new trial was ever filed in the case.

The defendant did, in due time, file a motion in arrest of judgment, which is, perhaps, in substance, a motion for new tria], but this is no compliance with the law, as the office of a motion in arrest of judgment is to direct the attention of the trial court to errors appearing on the record proper. Gilstrap v. Felts, 50 Mo. 428; Burdsal v. Davies, 58 Mo. 138; Cox v. Moss, 53 Mo. 432; White v. Caldwell, 17 Mo. App. 692. This court cannot consider an objection based on the want of evidence, if the attention of the trial court was not called to it in the motion for new trial. Blakely v. Railroad, 79 Mo. 388. In fact, a motion in arrest presupposes the verdict to be right (McComas v. State, 11 Mo. 116; Farmer's Bank v. Bayliss, 41 Mo. 275, 286), and can never be used as a substitute for the motion for new trial. Carrington v. Hancock, 23 Mo. App. 300.

' It results that the judgment must be affirmed.

All the judges concurring, it is so ordered.