Grant v. Planters' Bank

5 Miss. 326 | Miss. | 1840

Mr. Justice Trotter

delivered the opinión of the court.

The plaintiffs in error have assigned the following errors in the judgment. 1st. That the venue was not changed to the county of Coahoma. 2d. That there was no discontinuance of the common counts. In regard to the first assignment of error, it is deemed sufficient to remark, that the question which is raised by it, is not shown to have been made in the court below. It does not appear from the record that the attention of the court was ever called to the motion, or that the defendant insisted upon it. We are then, bound, by well settled rules, to presume that it was waived. New questions cannot be raised in the appellate court. If they might be, the mischiefs and great injustice which would result would be intolerable. In this case the motion may have been entered on the motion docket, and then suffered to rest, without the attention of the judge being directed to it. What his decision might have been we cannot tell. It is sufficient that he made none. This court has no jurisdiction of such a motion. “ It is a rule universal in its application, that a court of general jurisdiction is presumed, by every other court, to have acted properly, until the contrary is shown. It would be a violation of this salutary principle to sustain the objection here urged. This suit was transitory, and might well be maintained in Lowndes county. It was a privilege to the defendant to call on the court to change the venue. The affidavit necessary for that purpose is a matter in pais, and can only be made a part of the record by bill of exceptions. It was testimony offered in support of a collateral motion, and is no more a part of tbe record, until ordered to be made so by the court, than the statement of a witness on his examination before the jury. The second assignment of error has been several times decided upon by this court and held not to be tenable. It was so held in the case of Gridly v. Briggs, LaCost, & Co., 2 Howard, 830, and in Soria v. The Planters’ Bank, and is thus too well settled to be disturbed.

Let the judgment be affirmed.