McKee v. Jones Dry Goods Co. , 152 Mo. App. 241 ( 1910 )

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 sét 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.] 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 exception taken.

But defendant, in support of his exception, has cited us to Weber v. Ry. Co., 100 Mo. 194, 205, where it is held that one exception to the refusal of several instructions is sufficient. That does not meet the question here. For the instructions and the rulings thereon are looked upon in this state (though otherwise in other jurisdictions) as one act. The instructions, though in practice separated and designated by number, constitute one charge, and in that view one exception will cover several instructions. Whereas a motion for new trial and a motion in arrest of judgment are distinct and seek altogether different purposes and require separate orders from the court. Indeed, a motion in arrest of judgment is an admission that there is no ground for a new trial, and if filed and acted upon first, will waive that motion. It was doubtless this view of the difference between a general exception to a ruling on instructions, and on motions for new trial and in arrest of judgment, that caused the court to remark in the Weber case that its ruling was not in conflict with either Harrison v. Bartlett, or City of St. Joseph v. Ensworth, supra.

In support of these cases are those of other states. “A general exception cannot be taken to several rulings as an exception in gross, but each exception must be taken to each ruling as it arises in the trial.” [East St. Louis Ry. Co. v. Cauley, 148 Ill. 490.] “A single exception to a series of rulings is unavailable if any one of them is correct.” [Avery Mfg. Co. v. Lambertson, 74 Kan. 304.] To the same effect are Walter v. Walter, 117 Ind. 247; Johnson v. McCulloch, 89 Ind. 270; Elton v. Markham, 20 Barb. 343; Fales v. Fales, 70 Atl. (R. I.) 965.

We are thus left without authority to examine any matter of alleged error at the trial, and finding nothing otherwise to justify our interference, we affirm the judgment. All concur.