Annans v. Sewell

84 P. 395 | Or. | 1906

’Mr. Chief Justice Bean

delivered the opinion.

The plaintiff contends that no question is presented by the record for review, because no exception was taken to the ruling of the court in excluding the evidence at the time it was made, nor until after the return of the verdict. The statute defines an exception as “an objection taken at the trial to a decision upon matter of law,” etc.: B. & C. Comp. § 169. And under such a statute the authorities seem to be uniform that, before the action of a trial court in admitting or excluding testimony can be reviewed on appeal, an exception must have been taken at the trial : State v. Foot You, 24 Or. 61 (32 Pac. 1031, 33 Pac. 537) : Reese v. Kinkead, 20 Nev. 65 (14 Pac. 871); Turner v. Tuolumne County Water Co., 25 Cal. 397; Russell v. Dennison, 45 Cal. 337; Austin v. Andrews, 71 Cal. 98 (16 Pac. 546); Elliott, App. Proced. § 769; 2 Cyc. 721, 722, and authorities collated. “The rule is well established and of long standing,” says Mr. Chief Justice Waite, “that an exception, to be of any avail, must be taken at the trial. It may be reduced to form and signed afterwards; but the fact that it was seasonably taken must appear affirmatively in the record by a bill of exceptions duly allowed or otherwise”: United States v. Carey, 110 U. S. 51 (3 Sup. Ct. 424, 28 L. Ed. 67). The reason of this rule is thus.stated in Kennedy v. Cunningham, 2 Metc. (Ky.) 540: “One of the leadiug characteristics of the provisions of the Civil Code is the duty which they impose on the parties to the action to except to every proceeding in the cause and every decision of the court made during its trial that is deemed to be objectionable by either party. The policy of this requisition is obvious. Matters which are regarded as of little importance at the time, and are for that reason allowed to pass unnoticed, are thus finally disposed of, and cannot be afterwards relied upon as erroneous. Each party, by being apprised that the opposite party objects to some part of the proceedings, is thus put upon his guard, and has an .opportunity afforded him of correcting the error, if one has been committed, or of avoiding it, if about to be committed.” The requirement that exceptions must be noted during the trial is absolute and cannot be dispensed with: 2 Cyc. 715. And therefore the subsequent allowance by a trial judge of an exception to a ruling made during the trial does not cure the omission to take the exception at the proper time: Kennedy v. Cunningham, 2 Metc. (Ky.) 540; Pacific Exp. Co. v. Malin, 132 U. S. 531 (10 Sup. Ct. 166, 33 L. Ed. 450); Dimmey v. Railroad Co., 27 W. Va. 32 (55 Am. Rep. 292): It follows that no question is presented by this record for review, and the judgment will be affirmed. Affirmed.