Covillaud v. Tanner

| Cal. | Jul 1, 1857

Murray, C. J.,

delivered the opinion of the Court—Terry, J., and Burnett, J., concurring.

This was an action of ejectment. The cause was submitted to the Court below, without the intervention of a jury, upon the evidence taken, subject to all legal objections. No exceptions were taken to the testimony, or to the findings of the Court, and no motion was made for a new trial.

There is, therefore, nothing before us, except the single question, whether the facts found are sufficient to warrant the conclusions of law drawn therefrom by the Court, of which, there can be no doubt; the Court having found, as a fact, a prior possession in the plaintiff, and, as a conclusion of law, that such possession was sufficient to support an action of ejectment against an intruder.

The appellant seems to think that, by consenting to admit the evidence, subject to all legal exceptions, he has absolved himself from the necessity of taking any exceptions to the relevancy or sufficiency thereof, and devolved the responsibility on the Court below, of discovering whatever objections might exist, and that, after fishing for a verdict below, he may, for the first time, assign his objections in this Court.

This practice cannot be tolerated. Objections to the introduction of evidence must be taken on the trial below, and, unless so taken, cannot bo assigned as error, on appeal.

The appellant objects to the judgment, on the ground that the plaintiff is one of several joint-tenants, and cannot maintain an action individually. The Court finds that the plaintiff is one of several tenants-in-common, and, as such, he may bring an action of ejectment, under the decision of this Court, in the case of Throckmorton v. Burr, October Term, 1855.

No motion for a new trial having been made, we cannot examine the evidence, to ascertain whether it warrants the findings.

Judgment affirmed.