
    City of Hopkinsville v. W. H. Pelton.
    Objection Required Before Exception.
    A party cannot except to a decision made at the instance of the adverse party unless he had made objection to the motion, offer or request of the adverse party; and where an instruction is given at the instance and on the motion of the appellee without, objection by appellant his exceptions to the decision of the court thereon will be insufficient to bring them before the court for review on appeal.
    APPEAL PROM HOPKINS CIRCUIT COURT.
    January 30, 1879.
   Opinion by

Judge Elliott:

Four objections are made to the judgment in this case: i. That the damages given by the jury are excessive and were given under the influence of passion and prejudice; 2. The verd'ict of the jury is not sustained by sufficient evidence, and is contrary to law; 3. The court erred in refusing to instruct the jury as asked by the defendant, which error of the court was excepted to at the time; 4. The court erred in the instructions given to the jury to which defendant excepted at the time.

After a careful reading of the record we are of opinion that the verdict and judgment are neither excessive or unsupported by sufficient evidence. As to the third and fourth errors assigned, they cannot be noticed for the following reasons: By Sub-secs. 1, 2, and 3, Sec. 333, Code of 1877, it is provided that “an exception is an objection taken to the decision of the court on a matter of law.” A party may, without previous objection, except to a decision against-him, unless it be made at the instance of the adverse party. But a party cannot except to a decision made at the instance of the‘adverse party unless objection shall have been made to the motion, offer or request of the adverse party.

The instructions assailed as erroneous by the third and fourth assignment of errors were all except one given at the instance and on motion of the appellee, and his motion to and request of the court to give the instructions were not objected to by appellant. It is true that the decision of the court allowing those instructions to go to the jury was excepted to by the appellant, but the code does not permit such decision to be excepted to unless the motion, offer or request on which it was made has been objected to by the party excepting to the decision.

Campbell & Ferguson, Phelps & Son, for appellant.

Lander & Clark, for appellee.

As the instructions excepted to except one were given at the instance of and on motion of appellee without objection by appellant, his exceptions to the decision of the court on such instructions are insufficient to bring them before us for review.

The instruction offered by appellant was properly rejected by the court. Wherefore the judgment is affirmed.  