Lamkin v. Sterling

• Decision Date: 01 January 1867
• Citation: 1 Idaho 120
• Parties: B. F. Lamkin, Respondent, v. E. C. Sterling, Appellant.
• Court: Idaho Supreme Court

1 Idaho 120

B. F. Lamkin, Respondent, v. E. C. Sterling, Appellant.

Supreme Court of Idaho

January 1, 1867

EXCEPTIONS-PRACTICE.-It is undoubtedly the general rule that when a party seeks to reverse a judgment rendered in the inferior court, he must except to the ruling of the court and assign the error in this court on appeal.

IDEM.-The exceptions to the rule that exceptions must be first taken in the court below are where a complaint is so radically defective that it discloses no cause of action and will not support a judgment; and where a judgment has been taken by default and the appellant could not except by reason of his nonappearance, and who was bound to see that the proceedings were regular and legal.

IDEM.-When there is sufficient in a complaint to support a judgment notwithstanding it may be defectively stated and open to demurrer in the first instance, still if the judgment thus rendered be not excepted to, the appellant has lost his rights, and cannot reverse the judgment however patent the error.

IDEM.-There is no rule of practice governing legal proceedings more clearly defined nor better settled, than that any objections of whatever character, whether with reference to the regularity of the proceedings on the trial of the cause, or to error of law committed by the judge in relation to a motion, or of any ruling whatever on a question of law arising during the proceedings, must be taken at once, at the time when the question arises.

IDEM.-The code has denominated the hearing and disposing of questions or issues of law, trials. When, therefore, a cause is called to dispose of any issue, whether of law or fact, it is in contemplation of section 191, called for trial, so far at least as to require all rulings of the court which it is desired to have reviewed in an appellate court incorporated into a bill of exceptions.

APPEAL from the Third Judicial District, Ada County.

The alternative mandate was issued, commanding the territorial treasurer, E. C. Sterling, to pay a certain warrant described in the writ, or that such treasurer show cause to the contrary on the first day of December, 1866, before the district judge at his chambers. On the return day, a motion was filed to quash the writ on the ground that "the affidavit upon which said writ was granted does not state facts sufficient to entitle the plaintiff to said writ, or to constitute a cause of action." This motion was denied to which ruling no exception was taken. There was no other or further defense interposed. The peremptory writ was afterward ordered to issue.

S. P Scaniker, for the Appellant. Miller & Prickett, for the Respondent.

No exception was taken by the appellant to any ruling or decision of the judge below. Objections must be taken on the trial below; they cannot be taken for the first time in the appellate court. If exceptions to the rulings below be not taken at the time, they cannot be urged on appeal. There is no assignment of errors on file in this case. By assignment of errors, as the term is used in this court, is meant a specification of the errors upon which the appellant will rely with such full- Squires v. Foorman,

10 Cal. 298.) No exception having been taken, and there being no assignment of errors on file, this court can only look to the judgment-roll and review errors apparent upon its face. (Nelson v. Mitchell, 10 Cal. 92; McGill v. Rainaldi, 11 Cal. 391; Doyle v. Seawall, 12 Cal. 425; Russell v. Ford, 2 Cal. 86; Mott v. Smith, 16 Cal. 533; White v. Pratt, 13 Cal. 521.) The complaint in this case shows a good cause of action, and there being no error apparent upon face of the judgment-roll, the judgment of the judge below should be affirmed. (Karth v. Orth, 10 Cal. 192; People v. Goldbery, 10 Cal. 312; People v. Cornedo, 11 Cal. 70.)

McBRIDE, C. J.,

delivered the opinion of the court,

CUMMINS J., concurring.

This was an action of mandamus to compel defendant, Sterling, territorial treasurer, to pay territorial warrant No. 212, for one hundred and sixty-six dollars and sixty-six cents, to the defendant, who was the owner and holder. The facts alleged are that the territory was indebted to the defendant as territorial auditor; that he settled and audited said account, drew his warrant for the sum due, and that it was presented in its order for payment; that the funds applicable to the payment of the same were in the hands of defendant, and that he refused to pay the warrant; whereupon the plaintiff filed his complaint with the judge of the third judicial district, setting forth the facts and praying that a writ of mandate issue to compel the defendant to pay said warrant or show cause for his refusal. The defendant appeared by counsel before the judge at chambers and filed his motion to quash the writ, on the ground that the facts stated in the complaint were not sufficient to entitle the plaintiff to the writ, and constituted no cause of action. The record discloses a demurrer, but as no action appears to have been had upon it, and as the motion to quash is the proper mode of reaching the point made by the demurrer, we suppose that the party waived it on the hearing.

The motion to quash was denied on the hearing, and no

further answer or defense being made, the writ was made peremptory. No exception was taken to the ruling on the motion, and the plaintiff having given notice of appeal, the case is before us for review. There is no assignment of errors on file, and the appellant seeks for reversal of the judgment on the ground that there are errors in the record.

The plaintiff, when this case was called, moved to dismiss the appeal on the ground that there is no assignment of errors, and that as no exception had been taken in the court below, there was nothing before this court for review.

As the practice of the court had never been fully announced on the points involved in the motion, we declined to pass upon it on the brief argument submitted, and directed the counsel to proceed with the argument on the merits, reserving the consideration of the motion for a more deliberate examination.

It is undoubtedly the general rule that when a party seeks to reverse a judgment rendered in the inferior court he must except to the ruling of the court and assign the error in this court on appeal. If a party can submit to rulings in the lower court, taking no exceptions, and afterward go back into the record and hunt up errors and bring them into this court and avail himself of them without assignment, then there are few cases that might not be reversed. The reason for the rule is that every presumption of law is in favor of the judgment below, and that if a party does not except to a wrong ruling at the time it was made, he is deemed to have acquiesced in the decision and waived his objection. Another reason is that it should appear that the precise point adjudged below had received the attention of the court and have been passed upon adversely to the rights of the appellant.

But it is claimed that an appellant may assign errors apparent on the judgment-roll without having taken his exception. We have examined the authorities in California, and they are numerous, and while there is some little conflict in the practice, the later rule, and far the better one, in our opinion, is that the court will only examine the errors excepted to and assigned. The better authorities go even so far as to say

that the appellant must not only except to the ruling in the lower court, but he must specifically assign the error, or the exception will be disregarded. In practice many exceptions are noted which the party himself, on reflection, does not deem reliable, and hence he is called upon specifically to assign such as he wishes to stand upon in the appellate court.

The exceptions to the rule are that where a complaint is so radically defective that it discloses no cause of action and will not support a judgment, and where a judgment has been taken by default and the appellant could not except by reason of his nonappearance, and where the plaintiff was bound to see that the proceedings were regular and legal, then in such case the appellant may assign the error though he have taken no exception. As this judgment was not on default we need not consider that branch of the exception, and turn to the other branch to see if the case at bar comes within it.

The complaint sets up that the territory was indebted to him for services in an official capacity; that a warrant was drawn evidencing the indebtedness;...