1 Idaho 128 | Idaho | 1867
Lead Opinion
delivered the opinion of the court,
This ease is similar to the case just decided of B. F. Lamkin v. E. C. Sterling. It was an action of mandamus to compel the defendant as territorial treasurer to pay a warrant drawn upon the territorial treasury, and on the hearing before the judge below the same proceedings were had and the same rulings'made as in the case referred to. The case was brought up without any exception being taken at the time to any of the rulings of the judge, and under the decision announced in that case, we can only look into the judgment roll so far as to see if it will support a judgment. The complaint declares upon an indebtedness for services rendered and money paid; that a warrant as evidence of that indebtedness was made out by the territorial auditor; that it was presented to the defendant, who had funds in his hands applicable to its payment, and that he refused to pay it. There is no denial of these facts; they are presumed to be true. They disclose a cause of action, and we think that if there be a defect in it, which we do not undertake to decide, it should have been pointed out. It shows a prima facie case which the defendant was bound to meet, either by showing what were its defects by demurrer or by pleading facts by way of answer. There seems to be a very prevalent notion that under a demurrer which specifies that the complaint does not state facts sufficient to constitute a cause of action, the party so demurring may avail himself of anything which goes to defeat the action. This is a mistake.
In the present case the complaint shows that an indebtedness exists; shows how it arose; that he has the evidence of that indebtedness in the form of a warrant on the treasury; that the defendant is the treasurer; that he has funds in his hands applicable to the payment of this warrant; that it has been presented and is unpaid.
If there is any defense such as is insisted upon in this case, it is clearly one which should have been raised either by demurrer or answer below, and by exception to the ruling. We can not say, it is true, that the territory is in-
It is for tbe protection of inferior courts. It is manifestly unfair for a party to go into court and slumber, as it were, on bis defense, take no exception to tbe ruling, present no point for tbe attention of tbe court, and seek to present bis defense, tbat was never mooted before, to tbe judgment of tbe appellate court. Such a practice would destroy tbe purpose of an appeal and make tbe supreme court one for deciding questions of law in tbe first instance.
Tbe appeal will be dismissed and tbe judgment below affirmed, with costs.
Rehearing
delivered tbe opinion of tbe court on petition for rehearing,
Tbe petition in this case involving a consideration of tbe same points passed upon in tbe case of Lamkin v. Sterling, decided at this term, and in wbicb there was also'a petition for a rehearing, it is unnecessary to pass them under review again; but we refer to tbat case for tbe authority upon wbicb we base our judgment here.
Petition for a rehearing denied.