Opinion
March Term, 1856
N. Hill, Jr., for the motion.
John Moody, opposed.
The motion must be granted. The Code provides (§ 268) that, for the purpose of a review after a trial by the court, either party may except to a decision upon a matter of law arising on such trial, within ten days after notice in writing of the judgment, and that a case or exceptions may be made within the same time, or such further time as may be allowed by the rules of the court. The last part of the same section declares that the questions, whether of fact or law, can be reviewed only in the manner prescribed.
Under the former practice, exceptions could not be taken after the trial. If the court erred in charging or in refusing to charge the jury, the exception was made and noted at the time, or at least before the verdict. But under the Code, where the trial is by the court, the judge takes the evidence, and his decision may be and often is made afterwards. There is consequently no opportunity to except at the trial to the disposition which he finally makes of the questions before him on the whole case. To afford an opportunity of doing, after the final decision and judgment what could not be done before, is the object of the first part of the section referred to. The exceptions which may be and must be made within ten days after notice of the judgment, are those and only those which, under the former system of practice, were made to the rulings of the court after the evidence was closed and before the jury retired. This clause of the section does not authorize exceptions to be taken, after judgment, to matters arising during the trial, and where there is an opportunity to except at the time the adverse decision is made. Where a party can except on a point ruled against him as the trial is proceeding, but omits to do so, and acquiesces in the decision, it might lead to great injustice to give him the benefit of an exception taken after the judgment. This was not the intention of the Code.
In order to review the judgment after trial by the court, a case must always be made. In settling this, the Code imperatively requires a statement of the facts found by the judge, and his conclusions of law. The party who prepares the case should insert this statement, which, like any other part of the case, will be subject to amendment by the other party, and settlement by the judge. If it be desired to review any conclusion of fact, the case will contain the evidence bearing upon that conclusion. It will also contain the exceptions taken during the trial, and those taken after the judgment to the final conclusions of law. The case, if served within the ten days, will be of itself a compliance with the first clause of the section, and no other exceptions will be required to satisfy that clause. If not served within ten days, then a formal exception must have been made and served within that time, as the authority for inserting it in the case afterwards prepared, and any exception which appears in the case as settled, will be assumed to have been made in due time.
The proceeding thus prepared for the review of a judgment will combine the qualities both of a case and a bill of exceptions, as those terms were formerly understood. Its proper name we think is a case, but it must contain the exceptions taken during the trial, and those taken after the trial and judgment; and there is no right to review upon a question of law on any other terms. The exception must be taken at the trial, if there was opportunity, or if not, then within ten days after notice of the judgment, and it must always be stated in the case.
In regard to the present appeal, there is in the record a brief entry, stating the fact of a trial on which the question was raised and argued whether the answer showed any defence. It then goes on to state that the judge rendered the following judgment, setting it forth in haec verba. This entry may be called a case, but it should have stated in substance that upon the facts set forth in the answer the judge ruled and decided, as matter of law, that there was no defence to the action, and that the defendant excepted. As there was no exception, so far at least as now appears, there is no right to have a review of the judgment.
The appeal should be dismissed.
All the judges concurred.
Appeal dismissed.