State ex rel. Littleton v. Leach
71 Iowa 54
| Iowa | 1887
Reed, J.

1. practice : saving exceptions : method and time. I. The first assignment of error is that “the court erred in sustaining the demurrer to the petition as amended;” and the question arising under this assignment is the one mainly relied on by counsel for the plaintiff for the reversal of the judgment. But we cannot on-the, record in the case consider that question. The ruling on the demurrer was made on the twenty-first jday of March, and the order dismissing the action was made on the same day. Counsel for plaintiff did not cause an exception to these rulings to be noted in the record at the time they were, made, *56or within three days thereafter. iOn the twenty-second of March he filed his motion for a rehearing, and it was submitted on the same day, and taken under advisement by the judge; but the order overruling it was not made until the next term of the court, which was in May following. After the order overruling that motion was entered, the judge signed a “ bill of exceptions,” which embodies the various rulings of the court in the cause, including those sustaining the demurrer and dismissing the action. It is recited in this “bill of exceptions” that plaintiff excepted to each of said rulings. This is the only record of an exception by plaintiff to the ruling on the demurrer; and it'is very clear, we think, that it does not save the question for review on this appeal. It has so frequently been held that, in ordinary actions, we could review only such rulings of the lower court as were excepted to, and the exception properly made a matter of record, that it cannot now be necessary to refer to tlie cases in which the ruling has been made. The statute is clear and explicit as to the time at which exceptions may be taken, and the manuer in which they must be preserved. Section 2S31 of the Code is as follows: “An exception is an objection to a decision of the court on matter of law. The party objecting to the decision must do so at the time the same is made, (but if the decision is on motion, demurrer, or judgment, exception may be taken within three days,) and embody his objection in a bill of exceptions, to be filed during the term, or within such time thereafter as the court may fix. *. * *” And section 2833 is as follows: “When the decision objected bo is entered on the record, and’ the grounds of the exception appear in the entry, or when any error appears of record, the exception may be taken .by the party causing to be noted, at the end of the decision or in connection therewith, that he excepts.” It is clear that, under these provisions, an exception can be preserved only by having it embodied in a “ bill of exceptions,” or by having it noted in the record of the decision to which it relates. *57And a party wlio would save his exception by the first method mentioned, must have his “bill of exceptions” signed and filed within the time prescribed by the first provision quoted; that is, during the term at which the decision objected to was made, or within such time thereafter as the court may fix. As stated above, the bill of exceptions-in this case was signed during.the next term after the one at which the ruling in question was made. But the court did not fix a time after that term within which it should be signed and filed. There was no authority, then, for signing a bill of exceptions at that time for the preservation of that question, and we must disregard it.

the same. II. Error is assigned on the judgment of the court taxing the costs to the relator. But, as to this question, the record is in the same condition. The only record of any exception to the ruling is contained in the bill of exceptions, which, as stated above, was not signed until the next term after that at which the ruling was made, and no time after the term was fixed within which it should' be signed. The exception was therefore not properly preserved, and we cannot consider the question attempted to be raised by the assignment of error.

2. new trial : motion for cause decided on demurrer. III. The final action of the court in overruling the motion for a rehearing, or a new trial, is also assigned as error. Tlie lowing are tlie grounds of that motion: “C1) Because the court erred as to the finding of tll0 fects of the eage. ^ The court erred as to the law of the case on the facts. (3) On the law and facts, as submitted to the court, the plaintiff was entitled to judgment.” The amendment to the petition, it will be borne in mind, was filed after an issue had been joined and the parties had entered upon the trial, and the demurrer was to the petition as amended. In submitting this motion, counsel appear to have proceeded on the theory that there had been a determination of the case on the facts. Each of tlie grounds of the motion is, in effect, that, upon the facts *58proven, the judgment should have been for plaintiff. But the judgment was not based upon evidence. The court determined that the petition, as amended, was not sufficient to entitle the plaintiff to relief, and that was the ground upon which the judgment was rendered. The motion did not assail that ruling; nor did it call for a review of it. It was manifestly filed through a misconception of the record in the case, or a misunderstanding as to the action which had been taken by the court, and it was properly overruled.

The judgment must be

Affirmed.