Towler v. Wilson

5 Ky. Op. 10, 1872 Ky. LEXIS 156

• Court: Court of Appeals of Kentucky
• Decided: March 11, 1872
• Status: Published

Opinion

Opinion by

Judge Peters :

A motion for a non-suit is usually made immediately after the plaintiff below has closed his evidence on the ground that the testimony fails to make out a cause of action against the defendant; in this case prima facie the note itself was sufficient to authorize a recovery, and without evidence to sustain the defense relied on 'by the defendant, judgment would have gone as a matter of course, and motion for a non-suit after the defendant had closed his evidence was properly overruled.

Vance & Merritt, for appellant. R. .H.. Cunningham, for appellee.

Although we can not concur with the court below in some of the propositions submitted in the instructions to the jury as the correct exposition of the law of the case, still, as the ruling of the court in giving the instructions to the jury was not excepted to by appellant, we can not review them, as has been repeatedly held by this court.

AATierefore the judgment must be affirmed.