Chamberlain & Co. v. Masterson

29 Ala. 299 | Ala. | 1856

WALKER, J.

The action of the court below upon the offer by tbe plaintiff of bis own deposition in evidence, is tbe only matter to be considered by ns. So much of the bill of exceptions as relates to tbe questions to be decided, is in tbe following words : “ Upon the trial, the defendants, by their counsel, objected to tbe reading of said deposition, upon tbe ground that said Masterson was not a competent witness to prove tbe loss of bis watch, the subject-matter of this suit. This objection was overruled, and defendants, by their counsel, then objected to tbe entire deposition as improper and illegal testimony. This objection was, overruled, and defendants excepted.” It is clear that the words “defendants excepted,” at the end of the ■ foregoing extract, refer to the ruling of the court on the last objection to the admission of the deposition. The structure of the entire extract is such as to forbid any other construction, and that construction is consistent with the decision of this court upon a similar question. — Agee v. Medlock, 25 Ala. R. 281 ; Andress v. Broughton, 21 Ala. 200. There was, therefore, no objection or exception taken to the ruling of the court upon the question of the competency of the witness.

The decision in the case of Sackett & Shelton v. McCord, 28 Ala. 851, fully sustains the argument of appellants’ counsel, that a bill of exceptions is a statement of objections ; that it is not necessary that the bill of exceptions should show that the party excepted ; and that it is sufficient if it state that the party objected. But the objection must appear to have been to the ruling of the court; and such is the effect of the opinion in the case cited. The objection in this case was to the testimony, not to the decision of the court upon that objection. The rulings of the circuit court upon the trial of a cause cannot be reversed, unless they are objected to during its pendency. — See cases above cited, and Milton v. Rowland, 11 Ala. 182. The reason upon which this doctrine rests, so far as it pertains to questions of evidence, is thus stated in Wright v. Sharp, 1 Salk. 288 : “ You should have insisted upon your exception at the trial. You waive it if you acquiesce, and shall not resort back to your' exception after a verdict against you, when perhaps if you had stood upon your exception, the party had other evidence, and need no't have put the case on this point.”

There was no error in overruling the objection to the entire deposition, upon the ground that the testimony was “ improper and illegal,” because part of the testimony was “ proper and legal.” — Hiscox v. Hendree, 27 Ala. 216; Martin v. Hardesty, ib. 458; Thomas v. Henderson, ib. 523; Garrett v. Garrett, ib. 687 ; Thomas v. DeGraffenreid, ib. 651.

There is no error in the record, and the judgment of the court below is affirmed.