13 Colo. App. 508 | Colo. Ct. App. | 1899
The El Paso Lumber Company, contending that they had
The appellants present to us no proposition of law, either on the admission or rejection of testimony or on the rulings of the court, but rely wholly on the one single proposition that the judgment is not supported by the evidence. This is all there is in the appeal.
The appellee contests the consideration of this question on the point that no exception was saved to the judgment. It is a very well established rule in both courts that there can be no review of the testimony after a trial to the court unless there is an exception to the judgment presented by a bill of exceptions properly signed and authenticated. We concede the rule but we deny its applicability in the present ease. There has been in the history of appellate proceedings in this state such a constant presentation of this question that at last the doctrine has been finally settled, and as we have suggested it is not a debatable matter that the exception must appear in the bill in order to entitle the parties to be heard. The present case presents another phase of the question which we deem it best to express an opinion about that the practice may become settled and the appellate courts thereby relieved from the further consideration of such questions. The decisions have carried the doctrine of the necessity for an exception to the judgment to its extreme limit. Beyond what has already been decided we are not inclined to go, nor do we believe the technical rule should be carried any further. We will therefore show what this record contains, and determining this to be enough, it will dispose of the question for the future. The bill of exceptions does not contain the judgment either substantially or in haec verla. We hold this totally unnecessary. The judgment appears duly exhibited in the
Notwithstanding this question is preserved, we do not believe the appellants are entitled to a reversal of the case on the record. The appellee insists, and correctly, that as a general proposition wherever a case has been tried to the court or heard by a jury, and the judgment or verdict is against the appellant, and there is evidence in the case on which the judgment or verdict can be predicated, the appellate courts will not interfere. This is quite right and very justly so, because appellate courts are without the means to determine the accuracy of the judgment upon the testimony. It- may be as the appellants insist, that this is simply a bookkeeping suit, and in reality the brick was sold to the Newton Lumber Company, and since the Newton Lumber Company received sufficient money to pay for the material, the El Paso Lumber Company may not have a lien, whatever may have been the relations between them and the Newton Lumber Company. On the other hand, there was evidence to show that it was agreed between Baudry, the contractor, and the El Paso Lumber Company that this corporation should furnish the material, paying the purchase price and looking to Baudry for payment. This evidence would seem to show that this was the exact transaction between the parties, that the El Paso Lumber Company should pay for the material and furnish it to Baudry, the contractor, and thereby acquire the right in case of nonpayment to file a lien and enforce their claim against the building. We are wholly unable to determine from the evidence as'it is presented to us in the abstract where the truth lies, because there is a most decided and apparent contradiction in the testimony, and not having the witnesses before us and the benefit of their statements, we feel ourselves quite disqualified to determine where the truth
The judgment will accordingly be affirmed.
Affirmed.