Grossblatt v. Wright

• Decision Date: 28 December 1951
• Citation: 108 Cal.App.2d 475,239 P.2d 19
• Court: California Court of Appeals Court of Appeals
• Parties: GROSSBLATT et al. v. WRIGHT. Civ. 18484.

Page 19

239 P.2d 19

108 Cal.App.2d 475

GROSSBLATT et al. v. WRIGHT.

Civ. 18484.

District Court of Appeal, Second District, Division 3, California.

Dec. 28, 1951.

Rehearing Denied Jan. 14, 1952.

Hearing Denied Feb. 25, 1952.

Bernard B. Cohen, Los Angeles, for appellant.

Harry A. Franklin, Los Angeles, for respondents.

VALLEE, Justice.

Appeal by defendant from an adverse judgment in an action to recover treble damages, attorney's fees and costs under the United States Housing and Rent Act of 1947. ¹

At the time involved, June 14, 1948, the Housing and Rent Act of 1947, in pertinent part, provided: 'Any person who demands, accepts, or receives any payment of rent in excess of the maximum rent prescribed * * * shall be liable to the person from whom he demands, accepts, or receives such payment * * * for reasonable attorney's fees and costs as determined by the court, plus liquidated damages in the amount of (1) $50, or (2) three times the amount by which the payment or payments demanded, accepted, or received exceed the maximum rent which could lawfully be demanded accepted, or received, whichever in either case may be the greater amount * * *' ² In the present case the amount found to have been demanded and accepted in excess of the maximum rent which could be lawfully demanded and accepted was $1300.

After the cause was at issue defendant-appellant made timely written demand for a trial by jury, posted the jury fee, and the cause was set to be tried by a jury.

When the cause came on for trial, plaintiffs moved the court for an order 'that the jury be dissolved' and the cause be tried by the court without a jury on the ground defendant had no right to a trial by jury. Counsel for defendant vigorously, persistently, and at length, opposed the motion and contended he was entitled to a trial by jury. The motion was taken under submission and a jury impaneled. Prior to the taking of any evidence the motion was granted and the jury discharged. The relevant proceedings which took place with respect to the motion are set out in the margin. ³

Defendant first contends the court erred in denying him a trial by jury. Plaintiffs say defendand did not except to the ruling, therefore the point is not available to him on appeal. ⁴ Defendant answers that his conduct was equivalent to the taking of an exception and that is all the law requires.

Section 646 of the Code of Civil Procedure defines an exception as 'an objection upon a matter of law to a decision made,' and provides 'The exception must be taken at the time the decision is made, except as provided in section six hundred and forty-seven.'

Section 647 enumerates various matters which are deemed excepted to. An order denying a trial by jury is not amont them, and an exception was required.

The first enactment on the subject of exceptions was the statute of Westminister II, ⁵ which provided that a litigant might except to the rulings of the court in the progress of the trial, embody his exceptions in a bill of exceptions, and have the bill of exceptions made part of the record for purposes of review. The practice had real merit when its primary purpose was the preparation of a bill of exceptions for an appeal and there were no stenographic reporters or the record in the trial court was sketchy and incomplete. Now that we have a complete record of the proceedings in the trial court, the necessity for an exception in order properly to prepare a record on appeal has disappeared. ⁶ Its use now makes form a fetish. The necessity of an exception has been dispensed with in the federal courts and in a number of states. ⁷

Our statute which lists a great many matters that are deemed excepted to and omits a few to which an exception must be taken is a snare for the unwary. The distinction between those matters deemed excepted to and those not is purely fanciful and arbitrary. Everything accomplished by an exception is achieved by the requirement that the grounds of an objection be stated. An objection or opposition to proposed action indicates a party's dissatisfaction with what is proposed. If, after an objection or opposition to proposed action is overruled, a party takes an exception, he is merely repeating his dissatisfaction. ⁸

The courts have stated the functions of an exception as: 1) to make the ruling a matter of record so that it may be re-examined by the court on a motion for a new trial or be reviewed by an appellate court; ⁹ 2) to apprise the trial court that its ruling is challenged, and thereby enable it to reconsider its ruling and correct the error if it be such. ¹⁰

The purpose of an exception is not ritualistic; it is real. ¹¹ It 'is only a formal type of objection'. ¹² It does not have to be in any particular form. ¹³ It is sufficient if it points out clearly the error complained of. ¹⁴ The test of its sufficiency is whether it fairly directs the attention of the court to the claimed error. It is sufficient if it apprises the court in some way that the party does not acquiesce in the ruling or action of the court. ¹⁵

A liberal rule of construction should be applied in determining whether an exception was taken. ¹⁶ Courts exist to do justice. Litigants should be saved from the consequences of an oversight by counsel where it can be done in furtherance of justice and consistent with established rules of law.

In Horstman v. Krumgold, 55 Cal.App.2d 296, at page 299, 130 P.2d 721, at page 723, the court, referring to the amendment of 1907 to section 647 of the Code of Civil Procedure which provided that certain enumerated rulings were deemed excepted to, said: 'The amendment to section 647 of the Code of Civil Procedure has met with much favor and has resulted in improvement in the manner of conducting trials. The old custom of audibly noting exceptions is not generally followed at the present time. The amendment should be liberally construed in order that the rights of litigants be not lost by the failure of counsel to keep fresh in mind those rulings of the court which are enumerated in the amendment. The record before us discloses that plaintiff vigorously opposed the order requiring her to make an election as to the second count and after the noon recess she requested the court to reconsider its ruling. There is much force in counsel's argument that plaintiff's conduct at the trial was equivalent to the notation of an exception to the court's ruling.'

In San Joaquin Light & Power Co. v. Barlow, 43 Cal.App. 241, at page 243, 184 P. 899, at page 900, a witness for the plaintiff, qualified as an expert, testified that charges made for electric current were reasonable. The further proceedings appear in the opinion:

'On cross-examination of Simpson, after some questions had been asked and answered, relating to the conditions under which the service was to be rendered, and for the stated purpose of reaching the question of what was a reasonable rate, counsel for plaintiff objected that defendant could not go into these matters, on the ground that defendant, by entering into the contract, was estopped to question the reasonableness of the rate. After discussion, the court announced that----

"The only issue here is of them furnishing the amount for which they are charging.'

'Mr. Doherty: 'You mean no further testimony allowed on the proposition of whether or not the rate fixed by them was a reasonable rate under the issue of their pleadings?'

'The Court: 'I don't see that there is any open question there.'

'On the ruling thus made, defendant's counsel refrained from further cross-examination on the reasonableness of the rate. To the statement made by the court, and without any direct exception, counsel responded, 'Well, on the ruling of the court, then, I will not ask any further questions on cross-examination as to the reasonableness of the rate.'

'Although no question was formally propounded, with a ruling thereon from which under the statute an exception would be implied, the record made, ad above stated, was equivalent to such formal formal ruling and exception. Pastene v. Pardini, 135 Cal. 431, 67 P. 681.' ¹⁷

Regardless of the theory upon which an exception is required, defendant's conduct was the equivalent of an exception. After the court had granted plaintiffs' motion 'that the jury be dissolved,' defendant's counsel said: 'And may the record show, your Honor, that we are again demanding a jury trial of this matter, and we would ask your Honor to rule on that motion at this time.' The motion was denied.

Defendant made it perfectly clear to the trial court that he did not assent to or acquiesce in the ruling, but, on the contrary, that he considered it erroneous; with the court's knowledge he made what attempt he could in the time allowed him to obtain a writ of prohibition; the court had ample opportunity to reconsider and correct the ruling if it deemed it erroneous; defendant unequivocally indicated, and it appears clear that the court fully understood, he intended to make the ruling the subject of appellate review if judgment went against him. There is no mode by which defendant could have more distinctly manifested his dissent from the ruling than the one he followed. It would have been an idle and useless formality to have said 'note an exception' or 'I except.' It would be a reproach to any legal system to hold that defendant did not except to the ruling sought to be reviewed.

We must, therefore, consider the merits of defendant's assignment that the court erred in denying him a trial by jury.

The principles governing the right of trial by jury have been stated recently by the Supreme Court in People v. One 1941 Chevrolet Coupe, 37 Cal.2d 283, 231 P.2d 832, and need not be repeated at length. The test which determines the right to a trial by jury is whether the gist of the action is legal. It is not, as plaintiffs argue, and as the trial judge mistakenly assumed, whether there existed a right of action at common...