Wagner v. Jacoby

26 Mo. 530

• Court: Supreme Court of Missouri
• Decided: March 15, 1858
• Status: Published

Opinion

Richardson, Judge,

delivered the opinion of the court.

It was competent for the plaintiff to prove that the receipt offered in evidence by the defendant had been altered, or the jury could have found the fact if the suspicious circumstances on the face of the paper warranted that conclusion; but it was improper to permit the witnesses who had no previous knowledge of the receipt to give their -opinions on the subject. They did not profess to have any superior skill in such matters, and the jury was as competent as they were to draw proper conclusions from the appearance of the instrument. (Swan v. O’Fallon et al., 7 Mo. 331.)

The defendant duly excepted at the time the evidence was admitted, but did not assign the error in his motion for a new trial, and the plaintiff has insisted that such omission precludes the defendant from relying on the exception in this court. Under the former system of practice it was decided that exceptions taken during the progress of a trial were regarded as waived unless they were made the ground for a motion for a new trial; (Hoersh v. Bank of Missouri, 10 Mo. 516;) but it was held in Fine v. Rogers, 15 Mo. 315, that the practice introduced by the act of 1849 required a different rule; and since then the old rule has been abandoned and the practice established that this court will reverse for errors committed during the progress of a trial, if exceptions are taken and saved, although they may not be brought to the attention of the court in a motion for a new trial.

The other judges concurring, the judgment is reversed and the cause remanded.