Purdy v. Steel

• Decision Date: 01 January 1868
• Citation: 1 Idaho 216
• Parties: O. H. Purdy, Appellant, v. J. C. Steel Et Al., Respondent.
• Court: Idaho Supreme Court

1 Idaho 216

O. H. Purdy, Appellant, v. J. C. Steel Et Al., Respondent.

Supreme Court of Idaho

January 1, 1868

PRACTICE-EXCEPTIONS-ASSIGNMENT OF ERRORS-WAIVER.-All exceptions taken in the court below will be treated as waived, unless the matters so excepted to are assigned as error in this court.

REVIEW-JUDGMENT-ROLL.-In cases where no motion for a new trial was made in the court below, or where there is no statement properly made on such motion, the appellate court will only examine the judgment-roll, and if this be regular, the judgment will be affirmed.

APPEAL from the Third Judicial District, Owyhee County.

No appearance for the appellant.

Scaniker & Burmester, for the Respondents.

CUMMINS J.,

delivered the opinion of the court,

McBRIDE C. J., and KELLY, J., concurring.

The plaintiff, in his bill, seeks to enjoin the defendants from trespassing upon a certain mining claim to which he avers title in himself, and that he was in possession of the

same at the time of suit brought. It is also averred that the defendants frequently enter upon said claim and work and remove therefrom valuable quartz rock, and they also set up some interest or estate in the same in themselves, adversely to that of the plaintiff.

A jury having been demanded, some five distinct issues were framed under the direction of the court, upon which evidence was submitted to such jury, who, after due deliberation, returned a special verdict answering each issue separately submitted to them, on which special verdict the court entered judgment or a decree for the defendants. The plaintiff moved to set aside this verdict as being contrary to law and the evidence but the court very properly overruled the motion, to which exception was taken. There is, however, no motion for a new trial, or any other step taken by the plaintiff, except to move the court to set aside the verdict as already stated. Following the record of these proceedings are some forty-six pages of manuscript, purporting to be a "statement of case on appeal."

There were several exceptions taken by the parties during the progress of the trial, but there is no assignment of errors in this court. This brings the case within the rule heretofore laid down, namely, that we would treat all exceptions taken in the court below as waived unless they were assigned as errors in this court. (People v Page, ante, pp. 102, 189; Lampkin v. Sterling, ante, p. 120; Fierbaugh v. Masterson, ante, p. 135.) Such is also the rule laid down in the supreme court of California, to the...