Putnam v. Hannibal & St. Joseph Railroad

22 Mo. App. 589, 1886 Mo. App. LEXIS 330

Opinion

Hall, J.

The defendant contends that there was a failure of proof as to certain facts, essential to the plaintiff ’ s right to a recovery. But is the defendant in a position to make such objection in this court ? He clearly is hot unless he called the attention of the trial court to such objection by the motion for a new trial. Blakely v. Railroad Co., 79 Mo. 389; Fox v. Young, ante, p. 386.

The motion for a new trial set out several grounds or reasons, not one of which can be held to include the objection that there was a failure of proof, unless, indeed, it be the fourth of such grounds or reasons. That is as follows : “4. Because the finding is for the plaintiff when it should have been for the defendant.” The motion for a new trial must specify the reasons upon which it is founded. Ballinger v. Carrier et al., 79 Mo. 318. The fourth ground of the motion for a new trial in this case would seem to be too general for any purpose, but it certainly did not specify the objection that there was a failure of proof. Fox v. Young, supra. Such objection, then, was not called to the attention of the trial court by the defendant by the motion for a new trial, and cannot be urged by it in this court.

II.

The statement or petition in this case is incoherent, and clumsily drawn, but taken altogether it, in our opinion, states a cause of action.

Judgment affirmed.

All concur.