Swearingen v. Newman adm'r, 4 Mo. 456

Opinion of the court delivered by McGirk Judge Swearingen brought a suit in chancery, against the appellees. Several issues were made up by the parties, and found by the court sitting as a jury. Testimony was also taken'; and on the hearing, the court made a decree against the plaintiff, dismissing his bill. The testimony is preserved on the record: no motion was made to grant anew trial, of any issue found against the complainant; nor was any point of law made to the court, except that the decree was excepted to.

The appellant has assigned for error, the finding of the court on the evidence: and he has also assigned for error, that the decree is erroneous. The other party moved this court to strike out all the errors assigned, except the last, which is, that the decree should have been for the-other party. We are clearly of opinion that nothing can be assigned for error, except such as was made the subject of exception in the court below. If the court or jury found a wrong verdict, the only remedy was to apply for a new trial of the issue; if that were improperly refused, this court would correct the error.

The course attempted, to be pursued, is the course pursued under the late act, now repealed, but since the passage of the act of 1835, the law is different. The 1st section- of the 3rd art. of the act regulating chancery practice — R. code 511, says, before the hearing of a cause at issue, each party shall set down distinctly, all the allegations made by him, and denied by the other party, and issues shall be made thereon. The 5th sect, says, that the trial of these issues shall be by a jury, if required. The 6th empowers the court to grant a new trial &c.

The 9th provides that exceptions may bo taken to the opinion of the court, during the progress of any cause or trial of any issue in chancery; and bills of exceptions shall be allowed, signed, sealed, and made a, part of the record, in the same manner and with like effect as at law. The 31st sect, of the act respecting practice in the supreme court, (R. code 522) provides that no exception shall be taken in any appeal or writ of error, to any proceedings in the circuit court, except such as shall have been expressly decided on by such court.

And the 36'th sect, provides that the provisions ¡relative to appeal's and writs of error, and the parties thereto shall be construed to extend to appeals from the decrees and decisions in chancery causes, in all respects the same as to appeals from the judgments in suits at law. By the foregoing, it appears, that a case in chancery is on the same footing with a case at law. We are of opinión, all the errors assigned on the wrong finding of the court on the evidence, must be stricken out: as to the other assignment, that the decree is erroneous, there is nothing in it, as we cannot look ipto the evidence.

The decree is affirmed with costs. ‘JudgeWash absent