Montei v. St. Louis & S. F. R. Co.

• Decision Date: 17 March 1908
• Citation: 130 Mo. App. 149,108 S.W. 1073
• Parties: MONTEI v. ST. LOUIS & S. F. R. CO.
• Court: Missouri Court of Appeals

108 S.W. 1073

130 Mo. App. 149

MONTEI v. ST. LOUIS & S. F. R. CO.

St. Louis Court of Appeals. Missouri.

March 17, 1908.

APPEAL — REVIEW — SCOPE — MOTION TO SET ASIDE NONSUIT.

At the conclusion of plaintiff's testimony the court directed a verdict for defendant, whereupon plaintiff, without excepting to the instruction, took a nonsuit, with leave to move to set it aside, and saved an exception to the court's subsequent refusal to set aside the nonsuit. Held, that the exception was of no avail on appeal, since there was no error in the record proper, in the absence of an exception to the instruction.

Appeal from Circuit Court, Lawrence County; F. C. Johnston, Judge.

Action by Frederick Montei against the St. Louis & San Francisco Railroad Company. From an order denying a motion to set aside a nonsuit, plaintiff appeals. Affirmed.

McPherson & Hilpirt, for appellant. Woodruff & Mann, for respondent.

GOODE, J.

Action for a personal injury and damages to property by a collision with a locomotive. At the conclusion of plaintiff's testimony the court directed the jury to return a verdict for the defendant, whereupon plaintiff took a nonsuit, with leave to move to set the same aside, and, on the court's refusal to set it aside, saved an exception to the refusal to set aside the judgment of nonsuit and grant him a new trial. He can derive no benefit from his exception, because he omitted to except to the instruction for a verdict for defendant. The decision of the appeal is controlled by the authority of Lewis v. Mining Co., 199 Mo. 463, 97 S. W. 938, wherein the Supreme Court expressly declared that on a record like the one before us an appeal cannot be considered on the merits.

There being no error in the record proper, the judgment is affirmed. All concur.