Interstate Land & Town Co. v. Patton

21 Colo. 503 | Colo. | 1895

Chief Justice Hayt

delivered the opinion of the court.

There are but two errors relied upon in this court. The first is based upon the following language of section 3 of the amendments of 1889 to the Code of Civil Procedure, viz.:

“ The defendant may, within ten days after the service of the notice in writing upon himself or attorney that a replication has been filed, demur to the same for insufficiency, or to any part thereof, or may move to strike out the same or any part thereof, for any cause which may exist therefor.” Session Laws, 1889, page 73.

In this instance the trial was set for a day within the ten days allowed the defendant to demur or move against the replication, the defendant in the meantime not' having attacked the pleading by motion or otherwise. The contention of his counsel now is that it was error for the district court to enter upon the trial within the ten days allowed the defendant to attack the replication as provided by the law of 1889, and that such error is alone sufficient to entitle plaintiff in error to a reversal of the judgment.

Counsel are not, however, in a position to raise this question in this court, as it does not appear that the attention of the district court was in any way called to the matter, or that the defendant indicated any desire in the lower court to demur or move against the replication. If the defendant, being present, wished to plead to the replication, he should have called .the attention of the district court to such desire, and should have obtained its ruling thereon. He did .not.do this, ;hut, on the contrary, applied for a continuance on other 'grounds, and he cannot be permitted to raise this question for the first time in this court. Courts of review, as a general rule, will not pass upon matters which have not been called to the attention of the trial courts.

Aside from the foregoing, it does not appear in this case that the defendant was in any way prejudiced by the order of which he complains, there being no possible objection to this replication which he could not have taken advantage of at the trial.

The remaining error assigned is based upon the refusal of the court to grant a continuance upon the defendant’s application. In the absence of a bill of exceptions this court is precluded from considering the affidavit filed in support of the motion, and there is nothing which a court can intelligently act upon. The affidavit must be brought into the record by a bill of exceptions to reserve the matter for review. 2 Elliott’s General Practice, sec. 487; Jordan v. The People, 19 Colo. 417. The judgment of the district court will be affirmed.

Affirmed.