Zehnor v. Beard
| Decision Date | 26 November 1856 |
| Citation | 8 Ind. 89 |
| Parties | Zehnor v. Beard |
| Court | Indiana Supreme Court |
From the Wayne Circuit Court.
The judgment is affirmed with 3 per cent. damages and costs.
C. H Test, for appellant.
J. S Newman and J. P. Siddall, for appellee.
Beard sued Zehnor in the Court below to recover the balance due on a promissory note. Zehnor answered, setting up a failure of consideration. To the answer Beard filed a reply, composed of different paragraphs, and tendering several issues. Under the old practice it would have been regarded as several replications. Zehnor moved the Court to rule the plaintiff to elect on which paragraph of the reply he would rest; and that the others be rejected. The motion was overruled, and exception taken.
At this point the record is confused, but not materially affecting the questions presented for decision. There was a trial by jury, verdict for the plaintiff below, and judgment. The motion for a new trial was overruled, but no exception was taken, and the evidence is not made part of the record.
In this state of the case the second error assigned is perhaps the only one which should be noticed.
That error is thus assigned: "The Court erred in not compelling the plaintiff below to elect upon which of the several matters in avoidance in his reply to the answer, he would rely; and in refusing to reject the others." This assignment goes back to the bill of exceptions taken to the ruling on that point, and properly presents this question: Can the plaintiff, under the new practice, set up in his reply more than one matter of defense to the same answer?
The right to overflow neighboring land, was part consideration of the note which it was alleged had failed. It was replied, 1. That in consideration of deducting 800 dollars, Zehnor had undertaken to acquire that right himself, 2. That having been enjoyed by the vendor for over twenty years, the right to overflow passed to Zehnor with the mill, as appurtenant thereto.
The demurrer to the first of these matters in reply, may as well be determined. There was no exception taken to the opinion of the Court in overruling it. The law on this subject will be found under the head of "exceptions," 2 R. S. pp. 115, 116. The old system is so familiar to the bar, that some confusion has arisen from failing to distinguish the change in this respect. The new system defines an exception to be an objection taken to a decision of the Court upon a matter of law. Section 342. Decisions upon demurrer are clearly embraced. The exception must be taken at the time the decision is made. Section 343. When the decision and the grounds of objection appear in the record, the party may save the question by noting at the end that he excepts. Section 345. Thus, in the present case, reply, demurrer specially pointing out the cause, and the decision of the Court overruling it, are all in the record. But that is not sufficient. The exception must be noted at the end of the decision. Otherwise it is waived. 2 R. S. p. 39, s. 54, and p. 42, ss. 64 and 67. When the obnoxious decision, or the grounds of it, do not appear of record, the exception must be reduced to writing, after the manner of the former practice. Section 346. Thus, while the mode of excepting is varied to suit every contingency, the exception itself, as essential to save the question, is necessarily established.
The 347th section illustrates, but does not in the least impair, the view taken of the preceding sections. It is more specific as to the forms to be observed in taking a reserved question to the Supreme Court. The reserved question "may be taken upon the bill of exceptions showing the decision; or, if it arises on demurrer, upon the pleadings involved." These two clauses of the sentence quoted, clearly relate back to the two sections just referred to; the former to the 346th section; the latter to the 345th section. Thus does it appear that the exception taken in some form in the Court below, is indispensable to bring the question judicially before the Supreme Court. If not taken at the proper time, in one or other of these modes, the exception is waived, and the record presents nothing to be determined. Even in criminal cases, the defendant is held to the same strictness. Hornberger v. State, 5 Ind. 300.
Other parts of the practice act will not be found to conflict with this conclusion. Intimately connected with what we have been considering is that which relates to judgments on demurrer. We have carefully examined that section; it reads thus:
2 R. S. ...
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