Farrant v. Bates
60 Vt. 37
Vt.
1887
Check Treatment

The opinion of the court was delivered by

Taft, J.

The only exception taken upon the trial below was to the rendition of judgment upon the special verdict. There was no general verdict. No exception having been taken to the action of the court in ruling upon any question which arose prior to or at the time the special verdict was returned, there is no question in this court for revision, save the one *44taken to the rendition of the judgment; and there was no error therein, if the facts established by the special findings are sufficient to support the judgment rendered. The special verdict, as we construe the answers, established the facts, that the plaintiff owned, and was in possession of, a strip of land uncovered by water, between the old fence and low-water mark, over which the defendant rolled his logs, and in so doing became a trespasser. Such facts were sufficient to support the judgment. The many questions discussed by counsel at the hearing, are not properly before us, no exception having been taken to the action of the court in passing upon them. It is claimed by counsel that if the court below “ omitted to submit any question which ought to have been submitted, or to give any instructions which ought to have been given,” a new trial should be granted, and cite the case of Goodenough v. Huff, 53 Vt. 482. To entitle the party to the benefit of such questions they should have been reserved in the court below; and an exception to the rendition of the judgment upon the verdict does not reach back to questions arising during the trial. The judgment should stand, if facts sufficient to base a judgment upon, were established by the answers to the questions which were submitted; and Goodenough v. Huff, supra, is not in conflict with this view of the question. In that case the plaintiff sought to recover the amount of a promissory note; one question was whether there was a consideration for the giving of it; the issue was made by the pleadings and the evidence. The court did not. submit that question to the jury, only submitting the ones when the note' was signed, as that became material under the plea of the Statute, of Limitations and the amount due upon it. The special verdict established the facts that the defendant signed the note within six years prior to the bringing of the action and the amount due upon it.

It was incumbent upon the plaintiff under his claim as to when the defendant signed the note, to show a consideration for the signing. The judgment was rendered, not on the *45special findings alone, but also on the undisputed facts as to the circumstances under which the defendant signed the note, as shown by the plaintiff's testimony. The exception of the plaintiff reached every ground of the judgment, one of which was that there was no testimony tending to show a consideration, and as the Supreme Court held there was such testimony, the rendition of the judgment-was error. The case, therefore, only amounts to this, that every question involved in the rendition of a judgment is reached by an exception to its rendition, and we think the converse of the proposition is true that the exception does not reach a question, although raised upon trial, that it was not necessary to determine in order to render a valid judgment.

The counsel have thoroughly argued a question involving the rights of riparian owners, but as a majority of the court think the question is not presented by the record, we refrain from any discussion of it. The duty oí the court is to pass only upon questions presented by the record.

Judgment affirmed.