50 Colo. 171 | Colo. | 1911
Lead Opinion
delivered the opinion of the court:
The parties to this proceeding were co-partners. Defendant in error, as plaintiff, on February 2nd, 1901, brought an action in the county court against his co-partner, as defendant, for an accounting, alleging that their partnership had been dissolved by mutual consent, and that upon a just and true settlement of their co-partnership^ business it would appear there was a large balance due him, not exceeding, however, the sum of two thousand dollars. From the judgment rendered in the county court the defeated party appealed to the district court, where a referee was appointed to hear and determine the issues, and report findings of fact and conclusions of law. Pursuant to this order, the cause was heard before the referee, who found and reported that plaintiff was entitled to recover from defendant the principal sum of $1,577.22, with interest,' from November 15th, 1900, amounting to $883.26, a total of $2,460.48. This report was approved and judgment rendered accordingly. The defendant has brought the case here for review on error.
Three days after the final judgment was rendered, the court adjourned for the term. The next day defendant filed a written prayer for an appeal, which was subsequently refused. This is assigned as error. Whether the court was right or wrong in denying an appeal, is not material. Its ruling did not affect the rights of the parties one way or the other, on any question going to1 the merits, which are here for determination. These are the only ones proper to consider in reviewing the judgment. A party cannot complain of an order which did not injure him.
“2nd. Because judgment was rendered against defendant for one-half of the assets before they were reduced to cash, and before they were collected, and without first paying partnership debts out of the same.
“3rd. ’ Because defendant was charged with interest on one-half the profits and interest in the business, from the time of the dissolution of the co-partnership.
“4th. Because the reports of the referee and the judgment of the court thereon was based, in part at least, upon certain exhibits on file that were not introduced in evidence, and confessedly did not contain but a portion of the accounts of the .business transactions of the co-partnership.”
The defendant, though duly notified, did not appear at the hearing before the referee. He was also duly notified of the filing of the referee’s report, but failed to file any exceptions thereto. He did not take, any exceptions to the judgment confirming the report. He filed a motion for a new trial, but not until after the court had adjourned for the term, and it is, therefore, doubtful if his motion was filed in time to be entitled to consideration — sec. 218 Civil Code. But, waiving this, it appears from the motion that none of the grounds now urged upon our attention as above quoted or elsewhere, in the brief of counsel .for defendant, except that the report and judgment are not supported by the evidence, were called to the attention of the trial court by the motion for a new trial. This motion was overruled, but no exception to such ruling was taken;. so that the general rule, to the effect that before a question can be.considered or reviewed by an appellate court, it must have been
In the oral argument it was urged that as the action was originally commenced in the county court, the district court was without jurisdiction to render a judgment in excess of two- thousand dollars. The complaint filed in the county court alleged that on settlement of the partnership affairs the sum due the plaintiff would not exceed two thousand dollars. The finding of the district court is that the principal sum due plaintiff was $1,577.22 as of date November 15, 1900. Interest on this sum down to the date when the action was originally commenced, added to the principal as ascertained by the district court, would aggregate less than two thousand 'dollars. The
The judgment of the district court is affirmed.
Affirmed.
Chief Justice Campbell and Mr. Justice Hill concur.
Rehearing
On Petition for Rehearing.
delivered the opinion of the court:
In support of the petition for rehearing it is urged that the report of the referee is a part of the record without being made so by bill of exceptions. Granting, for the sake of the argument, that this is correct, and referring to the report alone, it shows beyond dispute, from the testimony therein reported, that the judgment which it recommends is correct.
"Whatever may be the rule in other jurisdictions, we have universally held that an exception to a judgment is necessary to enable a review of the evidence for the purpose of ascertaining its sufficiency to sustain the judgment. No exception was taken to the report of the referee, nor the judgment confirming the report, nor to the order of the court denying a motion for a new trial; so that plaintiff in error is not in a position to have the evidence reviewed as reported by the referee, if it were here.
It is urged that the judgment is outside the issues. The action'was for a partnership accounting.
It is finally urged that the allegation in the answer that the firm was indebted to the defendant in a sum named was not denied. There was at least an attempt to deny it. If not sufficient, the question should have been raised before the referee or before the court at some stage of the proceeding. This was not done, and this court will not review a question of this character which the trial court was not requested to pass upon.
The petition for rehearing is denied.
Chief Justice Campbell and Mr. Justice Hill concur.
Decided March 6, 1911; rehearing denied April 3, 1911.