13 Colo. App. 208 | Colo. Ct. App. | 1899
When the record in this canse was lodged in this court, the defendant in error interposed a motion to strike the bill of exceptions from the files, on the ground that it was not tendered or presented to the judge at the time of the rendition of the judgment, nor until after the judge was without power or jurisdiction to sign it. Decision of this motion was reserved until the finai hearing, and, upon application of the plaintiff in error, leave was granted him to file a supplemental transcript of the record. The cause has been argued and submitted; it is now reached for decision by us, but before proceeding to a consideration of the questions presented by the assignment of errors, the motion to strike must be disposed of.
The facts upon which the fate of the motion depends, as we find them in the original and supplemental transcript, are as follows : On the 16th day of February, 1893, during the January term of the court, a verdict was rendered in favor of the defendant in error, who was defendant below, and four days thereafter, at the same term, the plaintiff in error, who was plaintiff below, filed his motion for a new trial. On the 27th day of March following, and before the
It is provided by section 385 of the code that in all cases in courts of record, where either party shall except to any ruling, decision or opinion of the court, and shall reduce such exception or exceptions to writing, it shall be the duty of the judge to allow the same, and to sign and seal the same at any time during the term of the court at which such exceptions were taken, or at any time thereafter to be fixed by the court; and it has been held by our supreme court, in Fechheimer v. Trounsteine, 12 Colo. 282, that when the party tenders his bill of exceptions within the time fixed by the statute, or the order of the court, he has performed his duty, and his rights are protected, even though the bill be not actually signed until a time subsequent to the period fixed. The questions upon this motion therefore are: First, was there a tender, or what was equivalent to a tender, of the bill ? And second, if there was, was it made in time ? When the bill was ready to be tendered, the judge was absent from the city. His affidavit, which is before us, shows that he was in the mountains at the head waters of the Rio Grande river, twenty-five-miles or more from railroad or telegraph. In Fechheimer v. Trounsteine, supra, the fact was that when the bill of exceptions
On the 27th day of March, during the term at which this cause was tried, the court made an order allowing the plaintiff four months within which to tender his bill of exceptions. That time would expire on the 27 th of July; but the bill was given to the clerk on the 25th day of July, — two days within the limit, — so that, measured by the order, the time for tender had not expired. But a motion for a new trial had been interposed, and judgment was not entered until the following term. In Stocking v. Money, 14 Colo. 317, in which the code provision we have mentioned was considered, it was held that where no ruling was made upon a motion for a new trial until the term subsequent to the trial, and final judgment was reserved until after the ruling should be made, a bill of exceptions presented within the time allowed by the court at
The controversy was concerning title to certain mules, carts, scrapers, and other articles, constituting what is called a grading outfit. The plaintiff testified substantially as follows : In 1886, he had a grading contract oh the Colorado Midland Railroad, and gave the defendant, who had previously been in his employ as foreman, in the prosecution of similar work upon other railroads, charge of a portion of this work, under an agreement with the defendant, by the terms of which the latter was to perform the duties óf foreman, was to receive $50.00 per month for himself, was to be charged $30.00 per month for each team of mules, and twenty per cent of the value of the tools for each month’s use of them, as well as the cost of supplies furnished to him, and the wages of the laborers; and was to be allowed as a credit the value of the work done by him. Upon the completion of the plaintiff’s contract, and a settlement had, if it was found that the work done by the defendant realized a profit after deducting the foregoing salary, charges and expenses, the latter was to have the benefit of the gain, and have the privilege of using it, as far as it would go, in the purchase of the tools and animals, in a certain order which had been agreed upon, at prices fixed or to be fixed. Before the completion of the contract, and without a settlement, the defendant quit work, and was proceeding to remove the property, or a considerable portion of it, claiming it as his own.
The testimony of the defendant was that the agreement, under which he took charge of the work, included an abso
The learned counsel of the defendant, however, urge two
1. The instructions were in writing. They were given separately, and each was distinguished from the others by a number. The one we have quoted was numbered 4; and immediately following it in the record are the following words: “To the giving of which instruction the plaintiff then and there excepted.” At the close of all the instructions an objection appears, as follows: “ To the giving of each of which instructions the plaintiff duly and severally excepted.” Specific ground of objection was not assigned in either case, and, as we understand counsel’s position, the question is, were the exceptions sufficient without it? In the case of Johnson v. Jones, 1 Black, 220, the court said: “ It is well settled that if a series of propositions be embodied in instructions, and the instructions are excepted to in a mass, if any one of the propositions be correct, the exception must be overruled.” And in consonance with this, it has been repeatedly held by our supreme court that where the instructions given are in the nature of a general charge, exceptions which fail to direct the attention of the court to the portions claimed to be erroneous, are unavailing. Webber v. Fmmerson, 3 Colo. 248; Railway Co. v. Ward, 4 Colo. 30; Keith v. Wells, 14 Colo. 321; MoFeters v. Pierson, 15 Colo. 201. The reason usually given for condemning a general exception to instructions is not that it is not based on specific grounds, but it does not point out the specific part of the charge to which objection is taken. In those cases, the question whether in excepting to an instruction the grounds of the exception must be stated, was not directly passed upon, although we think a fair inference from the language employed would be that they need not be; but in Ritchey v. The People, 23 Colo. 314, the question was finally determined. At page 329, the court, speaking through Chief Justice Hayt, said: “ The instructions in the case — thirty-nine in number—
The exception taken in the case before us, at the close of the instructions, differs from the one in Ritchey v. The People, in that it does not contain the words “ then and there,” thus leaving the time at which it was taken in doubt. Whether it, alone, would be sufficient, we do not decide, and it is not necessary that we should. The instruction in question was specially and independently excepted to; the attention of the court was specifically called to it as being objectionable, at the very time it was given; and, following the decision in Ritchey v. The People, we must hold that the exception is sufficient to bring the instruction before us for our consideration.
2. The case was tried by a jury, the judgment was entered upon their verdict, and whether an exception is necessary to a judgment so entered, is the question to be now determined.
There are numerous decisions of the supreme court and and this court to the effect that to authorize the review of a judgment upon the evidence, it must have been excepted to;
The general purpose of an exception is to bring into question the correctness of some decision of the court; the office of an exception to a judgment is to challenge the court’s conclusion upon the facts; and we do not conceive that either the spirit or the letter of the statute would justify us in holding that an exception to a judgment is ever necessary, save where, upon a trial without a jury, the facts are found by the court.
For the error in giving the instruction of which we have spoken, the judgment must be reversed.
jReversed.