[4] I concur in the result but dissent from that part of the opinion holding an appellant loses all right to have us review assignments of error on matters of exception, if the record fails to show he saved an exception to the overruling of his motion for new trial. There is no denying the fact that the principal opinion of BOHLING, C., is in harmony with a long line of decisions in this court in both criminal and civil cases; and that the majority rule in other jurisdictions is the same. [3 C.J., sec. 802, pp. 895, 898, sec. 864, p. 968; 17 C.J., sec. 3339, p. 76.] But in a few cases the appellate courts have examined assignments of error directed to matters of exception although the record failed to show the saving of an exception to the overruling of a motion for new trial. State v. Jackson,221 Mo. 478, 491, 120 S.W. 66, 68, is one of these. The principal opinion overrules that case; and thereby, as I see it, binds us more tightly to an archaic and unjust rule, which long ago ought to have been abandoned.
[5] What is an exception for? 3 Corpus Juris, section 810, page 894, says: "An exception is an objection formally taken to a decision of the court on a matter of law. . . . The office of an exception is to challenge the correctness of the rulings or decisions of the trial court promptly when made, to the end that such rulings or decisions may be corrected by the court, itself, if deemed erroneous, and to lay the foundation for their review, if necessary, by the appropriate appellate tribunal; or, as it has been otherwise stated, to point out wherein the excepting party claims to have been prejudiced by the ruling of the trial court." The theory is further expounded in Fornof v. Wilkinsburg,238 Pa. 614, 620, 86 A. 494, as follows: "The office of an exception to a ruling upon the admission or rejection of testimony is an important one. Where the trial judge rules upon an objection and the ruling is not excepted to, he has a right to assume that it is acquiesced in, and thereafter to guide the trial accordingly. If counsel does not assent to the ruling, he should promptly ask for an exception; this serves to put the trial judge upon immediate notice that his ruling is not acquiesced in, as well as to secure the right to a future review."
Now bearing in mind the purpose of exception is, first, to advise *Page 1187 the trial court that the exceptor does not abide by the adverse ruling; and, second, to earmark the ruling for incorporation in the bill of exceptions to be taken up on appeal — what is the practical effect of that practice, as applied to the overruling of motions for a new trial? Sometimes, of course, a trial court will make a ruling or order sua sponte, but in many if not most instances the exceptor first interposes an objection to some action by the trial court, the court's ruling disallows the objection, and then the exceptor saves his exceptions.
It is entirely proper that the complaining party should formally save his exceptions to a ruling of the court during the progress of the trial (although in probably more than half of the circuits in this State there is an established practice of treating all adverse rulings, or at least rulings disallowing objections already made, to be considered as excepted to.) For in that way the fact is made clear that the exceptor does not abide by the adverse ruling and the court is not ambushed and led into further error of the same kind (if it is error). Then, at the end of the trial the losing party must file a motion for new trial picking out such of his objections and exceptions theretofore made as he desires to preserve for review. In that way the trial court is advised a second time that the exceptor is standing on his exceptions and has singled out the particular ones covered by the motion. Now, when the court overrules that motion for new trial, what possible reason or justice is there in saying that the trial court should be advised a third time of the objections and exceptions the objector desires to preserve for appellate review?
It will not do to say the trial court is misled by a failure to except to the overruling of the motion for new trial, and that the court's future conduct of the case will be influenced thereby, because nothing is left to be done, except to grant leave to file a bill of exceptions to allow an appeal, and to approve and permit the filing of the bill of exceptions. And when the appellant follows up the adverse ruling on his motion for new trial by obtaining leave to file a bill of exceptions and praying an appeal, how can the court think otherwise than that the appellant is standing on the assignments of error in his motion for new trial?
Now it is true that the statute provides for the saving of exceptions. In the code of civil procedure Section 1008, Revised Statutes 1929 (Mo. Stat. Ann., p. 1275) provides: "Whenever, in the progress of any trial in any civil suit pending in any court of record, either party shall except to the opinion of the court, and shall write his exception and pray the court to allow and sign the same, the person composing the court shall, if such bill be true, sign the same."
[6] Section 1009 provides when such exceptions must be saved and filed, and for the allowance of bills of exception. And Section *Page 1188 3695, Revised Statutes 1929 (Mo. Stat. Ann., p. 3251), makes the provisions of the code of civil procedure applicable to criminal cases. But there is nothing in any of these indicating the Legislature had any express purpose to invalidate an appeal as to matters of exception unless an exception was saved to the overruling of the motion for new trial. The statute by its terms refers to exceptions taken during "the progress of the trial." And when it is considered that the real purpose of a motion for new trial is not only to give the trial court a chance to review and correct its own errors, but to lay a basis for the preservation of these errors for appellate review by the filing of a bill of exceptions, it is not only unjust but illogical to say that the appellant must save exceptions in the taking of that final step, which is really a part of the procedure for the appeal.
It is said in State v. Harvey, 105 Mo. 316, 317, 16 S.W. 886, quoted in the principal opinion, that a motion for new trial is not part of the record proper, and that it has no place in a bill of exceptions unless an exception was actually taken to the overruling thereof. But the part of the record in which a motion belongs — whether in the record proper or the bill of exceptions — is governed by its nature. There is no concealing the fact that the doctrine which we have enforced through all these years is harsh and unjustifiable.
In many a case in this and other Missouri appellate courts an appellant, in both civil and criminal cases — and I stress and latter where life and liberty are involved — has been cut off without any ground of appeal left to stand on, merely because the bill of exceptions failed to show he had saved an exception to the overruling of his motion for new trial, although the very purpose of the bill of exceptions, plainly apparent on its face, was to have the appellate court review adverse rulings made below on matters of exception.
The question here is somewhat similar in its general aspects to one considered in Smith v. Ohio Millers Mut. Fire Ins. Co.,320 Mo. 146, 6 S.W.2d 920, a civil case, in which the court en banc abandoned the then time honored rule that term bills of exception should be filed, preserving exceptions to all adverse rulings during the particular term of court. It all goes back to the days when exceptions had to be taken and written out in longhand as they were interposed, since matters of such importance could not be left to the frailties of memory, and we had no shorthand reporters as we do now. At that early stage of our procedural history every lawyer was accumstomed to preserving his own exceptions. But by our shorthand system of reporting we have encouraged the bar to rely on the record made by the court reporter. There can be no possible doubt about the fact that an appellant does except to the overruling of his motion for new trial when it is only preliminary to the taking of an appeal and the filing of a bill of exceptions; and no court can be misled merely because the court reporter has failed to note that *Page 1189 an exception to that ruling was preserved. And when it is conceded that appellants are sometimes made to suffer heavy property loss in civil cases or grievous punishment in criminal cases when they had just grounds for appeal on erroneous rulings which were actually objected to and excepted to during the course of the trial, as the bill of exceptions shows, I submit that it is subversive of the very purpose for which this and other like courts were created to deny justice because of such technical irregularities. Douglas, Frank, Gantt, Leedy and Tipton, JJ., and Hays, C.J., concur.