McKee v. Jones Dry Goods Co.

• Citation: 132 S.W. 1191,152 Mo.App. 241
• Parties: SUSIE E. McKEE, Respondent, v. JONES DRY GOODS COMPANY, Appellant
• Decision Date: 05 December 1910
• Court: Court of Appeals of Kansas

132 S.W. 1191

152 Mo.App. 241

SUSIE E. McKEE, Respondent, v. JONES DRY GOODS COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

December 5, 1910

Rehearing Denied 152 Mo.App. 241 at 244.

Appeal from Jackson Circuit Court.--Hon. Jas. H. Slover, Judge.

Judgment affirmed.

Meservey & German for appellant.

Marley Vieregg & Grover for respondent.

OPINION

ELLISON, J.

This action is founded upon an arrest of the plaintiff under a charge of larceny, which was false. The judgment in the trial court was for the plaintiff, and defendant appealed.

The record, after showing that defendant filed a motion for new trial, and also a motion in arrest of judgment, recites that: "When said motions came on to be heard before the court, and, being argued by counsel and duly considered by the court, said motions were by the court overruled; to which action, ruling and decisions of the court, in not sustaining said motions, and granting a new trial, and in arrest of judgment, the defendant then and there duly excepted."

It has been generally understood that in order that a party may complain on appeal of the rulings of a trial court, he must except to each ruling and though embodied in a single bill (sec. 728, R. S. 1899) the matters excepted to are in the plural. A single exception to several separate rulings is not sufficient. This is made evident by the statute (sec. 727) requiring that an exception be taken to the opinion of the court as it may be given "in the progress of any trial in any civil suit." It would be contrary to the understanding of the bar, evidenced by constant practice, to say that a single exception could be properly taken, at the close, to all of the court's rulings on the admission or exclusion of evidence. So it has been ruled in a case constantly cited with approval that exceptions must be saved to each specific ruling in the progress of the trial. [Harrison v. Bartlett, 51 Mo. 170.] In that case it was stated at the foot of the bill of exceptions "that to all the rulings, orders and judgment of the court the defendant excepted," and it was held to be no proper exception. The direct question here involved seems to have been decided by the Supreme Court in City of St. Joseph v. Ensworth, 65 Mo. 628, where the court said: "There is no exception saved to the overruling of the motion to set aside the non-suit. Exceptions must be saved to each specific ruling as it occurs during the progress of the cause, and it will not do, as was attempted here, to fail to except when the motion to set aside the non-suit was overruled, and then seek to cure the omission by a general exception when the motion in arrest is overruled."

And in Danforth v. Ry. Co., 123 Mo. 196, 198, it is stated that different orders and rulings appertaining to the trial are matters of exception and must be "severally excepted to at the time."

It has been ruled that a general statement in a motion for new trial that the trial court erred in admitting improper evidence was sufficient, on the ground of a long established practice in this state. This was a proper ruling on the ground stated, since the contrary view would unsettle an unbroken usage. [State v. Noland, 111 Mo. 473, 493, 19 S.W. 715.] But that in no way bears on the question here; for it is there stated that while the motion for new trial could be couched in the general terms stated, the evidence thus generally referred to must have been specifically objected to at the trial, and, of course, separate...