
    Case 80 — EQUITY
    May 5, 1881.
    Cooksey, &c., v. Cassidy, &c.
    APPEAL PROM CALDWELL CIRCUIT COURT.
    1. A trial iu chancery is not ended until final judgment is recorded, and under Myers’ Code, which provided that exceptions to the competency of depositions might be filed at any time during the progress of the trial, such exceptions were in time, although not filed until after the court announced its conclusion from the bench.
    2. In the absence of an objection to the filing of the exceptions, appellants cannot complain of the action of the court in permitting them to be filed.
    
      GEO. W. DUVALL for appellants.
    Exceptions to depositions should be in writing, and filed before the beginning of the trial. As the written exceptions in this case were not filed until after the trial began, they should not have been considered. (Thompson v. Porter, 4 Bibb, 70; Bronson v. Green, 2 Duvall, 234; Civil Code, sec. 586.)
    S. MARBLE & SON for appellees.
    'The recording of the judgment and not the announcement by the court of its conclusion was the ending of the trial, hence the exceptions to depositions were filed in time. (Myers’ Code, sec. 651.)
   JUDGE HINES

delivered the opinion of the court.

On the hearing, counsel for appellees orally announced that he excepted to certain depositions taken by appellant, on account of interest on the part of the deponents, and .after all the depositions had been read, and after argument of counsel, the court announced from the bench its conclusion in conformity to' the judgment appealed from, whereupon counsel for appellees filed written exceptions to the depositions, specifying the grounds of interest, which exceptions were sustained by the court, exceptions taken at the time to the ruling of the court, and thereafter the judgement appealed from was entered of record. At the time the depositions were taken, which was prior to the act making persons interested in the result of an action competent, •the persons whose depositions were excepted to were not ■competent witnesses, and the ruling of the court was therefore correct, but the complaint is that the verbal exceptions •amounted to nothing, and that the written exceptions came too late. Under Myers’ Code, which must apply here, because the action was in progress when the Code of 1877 •was adopted, exceptions to competency might be filed at any time ..during the progress of the trial, and the party ■offering the evidence had the right to require the court to pass upon the exceptions before rendering or entering final judgment on the merits. No request of this kind, was, made of the court, so far as the record shows, but appellants contented themselves with an exception to the ruling;sustaining the exceptions, as appears from the judgment. After the final judgment was entered, counsel for. appellants, filed grounds and moved for a new trial, complaining that: the written exceptions were not filed until after the argument of counsel, nor until after the court had intimated what its. judgment would be, and that he was thereby taken by surprise. As the exceptions might at any time during the trial be filed, and the court has full control over such matters; until the judgment is entered, and as counsel might have-required the court to pass upon the exceptions, at the time-they were filed, and before the judgment was entered,, as-well as he could have- done if they had been filed earlier,, we see no reason why the court should have granted a new-trial on the ground of surprise. Counsel must have known» of the right to file the exceptions at any time during the-trial, and of his right to have the court pass upon them before entering judgment; but even if it be conceded that the exceptions came too late because not filed before the-depositions were read and argument heard, appellants cannot" complain because the record does not show that counsel-objected to the filing of the exceptions or to their consideration by the court. There is nothing but an exception to-the ruling of the court on the exceptions.  