Loloff v. Sterling

Citation31 Colo. 102,71 P. 1113
PartiesLOLOFF v. STERLING.
Decision Date12 January 1903
CourtSupreme Court of Colorado

Appeal from District Court, Weld County.

Action by Asa Sterling against Frederick W. C. Loloff to acquire land for an irrigation reservoir. From a judgment on an award, defendant appeals. Reversed.

Garrigues & Smith, for appellant.

H. N Haynes, for appellee.

CAMPBELL C.J.

1. Appellee questions the right of appellant to be heard upon certain errors assigned, because they were not included in his motion for a new trial. The point made is that if a party neglects to bring before the trial court, by his motion for a new trial, where the case is tried before a jury, the grounds which might there have been urged for granting a new trial, he may not thereafter, upon a review of the judgment rendered against him, be heard upon such omitted matters. The argument is based, in part at least, upon the proposition that the Code provisions relating to appeals which apparently are against appellee's contention, do not apply to a proceeding under the eminent domain act, which is a special proceeding, complete in itself, and which does not in express terms authorize a review of the objections here presented. This position is not tenable. Section 249 of that act (Mills' Ann. St. § 1727) declares that an appeal may be taken to the Supreme Court in the same manner as provided by law for taking appeals from the district to the Supreme Court. The Code provisions on that subject, therefore, govern.

The question, then, is whether appellant, having failed to embody in a motion for a new trial certain questions which he asks this court to consider, is in a position to be heard upon them. Section 393 of the Code provides that a motion for a new trial shall not be necessary to enable the Supreme Court to review the judgment and orders of the inferior court, where the matters alleged as errors have once been passed upon by such court against exceptions made at the proper time. Under our practice as it existed before the adoption of the Civil Code, rulings of the court at the trial in receiving and rejecting testimony, although it was proper to present them for consideration in the court where the cause was tried upon a motion for a new trial, could not be reviewed in the Supreme Court upon such motion; but, to entitle the defeated party to a review in this court of errors assigned to such rulings, exceptions must be reserved at the time, and brought into the court by a bill of exceptions settled and sealed, and might thus be reviewed, though not incorporated in a motion for a new trial. K. P. Ry. Co. v. Twombly's Adm'x, 2 Colo. 559. In Brown v. Willoughby, 5 Colo. 1, 8, it was said that, although the Supreme Court may not review the evidence unless a party has appealed from an order denying a motion for a new trial, yet any error of law in permitting or excluding testimony may be reviewed upon an appeal when the ruling is made a part of the record by bill of exceptions, and where objections were made and exceptions preserved at the time of the trial. For other cases, see Mills' Ann. Code, p. 669, notes 26, 27, 28, 30, and Id. p. 664, note 46. In Cowan v. Cowan, 16 Colo. 335, 337, 26 P. 934, decided after the Code was in force, it was held that it was not necessary to preserve a formal exception to the overruling of a motion for a new trial in order to a review of the rulings of the trial court upon the admission and rejection of testimony. So the Code seems not to have changed the former practice in this respect. It will be observed, however, that this distriction has been made; that, in order for a defeated party to obtain a review of a judgment upon the alleged insufficiency of the evidence, he must have made a motion for a new trial upon that ground, and had an adverse ruling of the court upon it, because only in that way would the trial court have an opportunity to pass upon that particular objection. But, where objections have been made and exceptions taken to the rulings of the trial court upon the admission and rejection of testimony, such rulings may be reviewed, although the errors assigned to them may not have been incorporated in a motion for a new trial, and thus passed upon by the trial court; for, having once had an opportunity to pass upon the questions, and its attention having been specifically called thereto at the trial, there is no imperative reason why its attention should again be arrested by a motion for a new trial containing such assignments before an appellate court will consider them upon a review. The mere failure to insert, in a motion for a new trial which is filed, such grounds as errors, does not, of itself, operate as an abandonment of them upon a review of the judgment, provided, of course, the questions are otherwise properly preserved. A different practice prevails in some of the states, as counsel for appellee has pointed out in his brief, but this court seems to be committed to the practice observed by appellant. A reviewing court probably would, and should, look with disfavor upon errors assigned to rulings upon evidence when the defeated party has not incorporated them in his motion for a new trial, yet such a proceeding is not a necessary condition precedent to a review by the appellate tribunal. We therefore proceed to consider the errors which have been argued.

2. The trial court refused to permit the landowner to prove sales of property similarly situated to his own. This evidence was sought to be elicited on the ground that it is some criterion of the value of the land taken, which, though not conclusive, is competent evidence, whose weight and sufficiency were for the jury to determine. The court did not reject the evidence upon the ground that the situation and conditions surrounding the land were not sufficiently similar. In other words, its discretion in passing upon that phase of the question was not involved, for the trial judge specifically ruled against the offer upon the ground that such evidence was incompetent and immaterial, and petitioner's objection thereto was sustained upon that ground.

There are two lines of decisions upon evidence...

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14 cases
  • Telluride Power Co. v. Bruneau
    • United States
    • Utah Supreme Court
    • April 18, 1912
    ... ... similarly situated is admissible on direct examination ... (St. Louis Co. v. Clark, 121 Mo. 169, 25 S.W. 192, ... 26 L. R. A. 751; Loloff v. Sterling, 31 Colo. 102, ... 71 P. 1113; White v. Hermann, 51 Ill. 243, 99 Am ... Dec. 543; Provision Co. v. Chicago, 111 Ill. 651; ... Paine ... ...
  • Ft. Lyon Canal Co. v. Bennett
    • United States
    • Colorado Supreme Court
    • April 3, 1916
    ... ... volume of water flowing in the canal at the time when ... particular crops required irrigation. Loloff v. Sterling, 31 ... Colo. 102, 71 P. 1113; Big Thompson Co. v. [61 Colo. 120] ... Mayne, 36 Colo. 355, 91 P. 44; Keel v. Schaupp, 42 Colo. 70, ... ...
  • City and County of Denver v. Lyttle
    • United States
    • Colorado Supreme Court
    • April 22, 1940
    ...the issues here. Timely objection was made to all of this evidence. It does not clearly appear that no prejudice resulted (Loloff v. Sterling, 31 Colo. 102, 71 P. 1113); fact, in would appear otherwise. Under these cicumstances, reversal is necessary. Wassenich v. City and County of Denver,......
  • Goldstein v. Denver Urban Renewal Authority
    • United States
    • Colorado Supreme Court
    • February 7, 1977
    ...the basis for expert opinion of fair market value. See Wassenich v. City of Denver, 67 Colo. 456, 186 P. 533 (1919); Loloff v. Sterling, 31 Colo. 102, 71 P. 1113 (1903).2 The rulings of the commission with respect to the 'demolition cost' appraisal technique were not brought to the attentio......
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