Smith v. Sterling

• Decision Date: 01 January 1867
• Citation: 1 Idaho 128
• Parties: Ephraim Smith, Respondent, v. E. C. Sterling, Appellant.
• Court: Idaho Supreme Court

1 Idaho 128

Ephraim Smith, Respondent, v. E. C. Sterling, Appellant.

Supreme Court of Idaho

January 1, 1867

PRACTICE-EXCEPTIONS.-No exceptions having been taken to the ruling of the court below, we can only look into the judgment-roll so far as to see if it will support a judgment.

APPELLATE COURT.-A party cannot avail himself of a defense for the first time in the appellate court.

APPEAL from the Third Judicial District, Ada County. The facts in this case are precisely the same as those involved in the case of Lamkin v. Sterling, just reported. Similar proceedings were had in the court below, and the appeal taken upon similar questions. We therefore refer to that case for a more detailed statement of facts than is contained in the opinion of the court.

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

McBRIDE C. J.,

delivered the opinion of the court,

CUMMINS J., concurring.

This case is similar to the case just decided of B. F. Lamkin v. E. C. Sterling, ante, p. 120. It was an action of mandamus to compel the defendant as territorial treasurer to pay a warrant drawn upon the territorial treasury, and on the hearing before the judge below the same proceedings were had and the same rulings made as in the case referred to. The case was brought up without any exception being taken at the time to any of the rulings of the judge, and under the decision announced in that case, we can only look into the judgment-roll so far as to see if it will support a judgment. The complaint declares upon an indebtedness for services rendered and money paid; that a warrant as evidence of that indebtedness was made out by the territorial auditor; that it was presented to the defendant, who had funds in his hands applicable to its payment, and that he refused to pay it. There is no denial of these facts; they are presumed to be true. They disclose a cause of action, and we think that if there be a defect in it, which we do not undertake to decide, it should have been pointed out. It shows a prima facie case which the defendant was bound to meet, either by showing what were its defects by demurrer or by pleading facts by way of answer. There seems to be a very prevalent notion that under a demurrer which specifies that the complaint does not state facts sufficient to constitute a cause of action, the party so demurring may avail himself of anything which goes to defeat the action. This is a mistake.

Suppose a party should set up a promissory note in his complaint for one hundred dollars, and should ask and obtain judgment for five hundred dollars. Then, although the record would disclose the fact that the plaintiff was not entitled to any such judgment, yet if he did not except to its rendition and sought its reversal simply on the judgment-roll, he would fail; because the complaint, though clearly defective for the amount adjudged, yet discloses a substantive cause of action, and the defendant could not waive his defense, however good or complete in law, in the court below, and raise it here. If the plaintiff, in a suit as plaintiff, should allege that a cause of action existed against his defendant; that the indebtedness was for goods sold and delivered, or for labor and services performed,...