Rudolph v. Smith

• Decision Date: 08 June 1903
• Citation: 18 Colo.App. 496,72 P. 817
• Parties: RUDOLPH v. SMITH.
• Court: Colorado Court of Appeals

72 P. 817

18 Colo.App. 496

RUDOLPH v. SMITH.

Court of Appeals of Colorado

June 8, 1903

Appeal from District Court, Teller County.

Action by J.H. Rudolph against F.N. Smith for an accounting. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

John W Horner (Hawkins, Graham & Campbell, of counsel), for appellant.

Lunt Brooks & Willcox, for appellee.

MAXWELL J.

December 16, 1895, appellant and appellee entered into a copartnership for the purpose of carrying on a general secondhand business at Cripple Creek. Dissensions having arisen, March 18, 1897 the partners had an accounting, a settlement of accounts, and a dissolution of the copartnership. October 19, 1899, appellant filed his complaint in the district court, wherein he alleged that, since the accounting and settlement above mentioned, an examination of the books of the copartnership, which had been wholly kept by, and were under the control of, the appellee, disclosed that, "either through error, mistake, or intentional fraud," the appellee had failed to credit appellant with stock in trade by him furnished to the copartnership, and had appropriated to himself large amounts of partnership funds without charging himself therefor upon the books of the copartnership, and prayed an accounting of all the affairs of the copartnership. An answer and replication having been filed, the case came to trial before the court, a jury being waived, which trial resulted in a judgment for the defendant. A reversal of the judgment is urged for the following reasons:

1. The judgment is against the weight of evidence.

No exception to the judgment is preserved in the record. It is true that, following the entry of the findings of the court and the order for judgment, it is stated that an exception was taken by plaintiff, but that entry constitutes no part of the record. "Exceptions to the rulings and decisions of the court can be brought into the record only by bill of exceptions, allowed, signed, and sealed by the judge. Where a cause is heard by the court, an exception to the final judgment is necessary to authorize the appellate court to review the judgment upon the facts, or upon the law as applied to the facts; but the exception must be made a part of the record in the manner prescribed by law, otherwise it cannot be noticed." Burnell v. Wachtel, 4 Colo.App. 556, 36 P. 887; Breen v. Richardson, 6 Colo. 605; Rutter v. Shumway, 16 Colo. 95, 26 P. 321; Bank v. McCaskill, 16 Colo. 408, 26 P. 821; Cox v. Sargent, 10 Colo.App. 1, 50 P. 201.

2. The court...