
    Elliott Fishback v. Baughner, Brooks & Co.
    Appeal — Objection to Evidence — Waiver.
    Objection to evidence may 'be deemed waived where the ruling was not excepted to and was not made a ground for a new trial.
    
      APPEAL FROM BRACKEN CIRCUIT COURT.
    October 13, 1873.
    
      A. H. Ward, for appellant.
    
    
      Willis, James, for appellees.
    
   Opinion by

Judge Peters:

Although the evidence which is now complained of as being incompetent was objected to when offered on the trial in the court below ; still no exception was taken to the opinion of that court in admitting it. Nor was that error (if it be one which we need not and do not decide) assigned as a reason for a new trial — consequently the objection to the evidence must be regarded as waived.

But one instruction was given to the jury, to the giving of which no objection was made and no exception taken and for that reason this court cannot review the ruling of the court below as to the instruction.

The verdict for the plaintiff was as effectual as if there had been a special finding that the note sued on was the act and deed of the defendant Fishback and the judgment entered was in conformity to the verdict and in compliance with the section 414 of Civil Code.

On the motion for a new trial on the -ground of newly discovered material evidence, the appellant failed to show any diligence whatever in procuring the evidence before the trial.

Perceiving no available error in the judgment and proceedings complained of the judgment must be affirmed.  