Coffey v. City of Carthage

• Decision Date: 22 December 1906
• Citation: Coffey v. City of Carthage, 200 Mo. 616, 98 S.W. 562 (Mo. 1906)
• Parties: COFFEY v. CITY OF CARTHAGE, Appellant
• Writing for the Court: BURGESS, P. J.
• Court: Missouri Supreme Court

98 S.W. 562

200 Mo. 616

COFFEY v. CITY OF CARTHAGE, Appellant

Supreme Court of Missouri, Division Two

December 22, 1906

[Copyrighted Material Omitted]

200 Mo. 616 at 629.

Original Opinion of December 22, 1906, Reported at: 200 Mo. 616.

Motion overruled.

OPINION

ON MOTION FOR REHEARING.

BURGESS P. J.

-- In a motion for rehearing filed by defendant herein it is said that we overlooked the appellant's printed record which shows that appellant objected to the action of the Jasper Circuit Court in awarding the change of venue to Newton county and at the time saved an exception to the ruling of the court in granting said change.

That we did not overlook this matter is demonstrated by the fact that in the statement of the case we stated, precisely, what the record discloses with respect thereto -- that is, "That the motion for change of venue was sustained and the venue awarded to the circuit court of Newton county in the 29th judicial circuit, to which action of the court defendant at the time excepted." It is true, however, that this question was not passed upon or adverted to in the opinion, the reason being that the point was not made, nor was the court's attention in any manner called to it in the motion for a new trial, and being a matter of exception it could not be considered by this court under such circumstances.

It is well settled that no matter of exception can be considered by this court upon appeal or writ of error, unless the attention of the court below be called to it upon motion for new trial. This has been so often decided that it is deemed...