Fox v. West , 1 Idaho 782 ( 1880 )

Buck, J.,

delivered tbe opinion;

Moegan, C. J., and Peickett, J., concurring.

This action is brought on a joint and several promissory note given to plaintiff, as payee, by defendants, and one B. W. Tliompkins. Only West and Luney were made parties defendant, tbe joint maker, Tbompkins, having died prior to tbe commencement of tbe action. Defendant West made default, and Luney filed bis separate answer, alleging among other things full payment of tbe note. Tbe cause was tried with a jury on tbe issues joined, and a verdict was rendered in favor of tbe plaintiff, against both defendants, as prayed for in tbe complaint, for tbe sum of one hundred and twenty-six dollars and sixty-eight cents. Judgment was enteredfor the amount found due against tbe defendant without designating which one.

Appeal is taken from final judgment, and tbe errors alleged are: 1. That tbe jury erred in finding a verdict against both defendants, tbe plaintiff claiming that tbe verdict should have been separate against defendant Luney for tbe amount found due on tbe note, leaving tbe plaintiff at liberty to enter a separate judgment against defendant West on default for tbe full amount. 2. That tbe court erred in recen ing tbe verdict and entering judgment.

No bill of exceptions or statement was brought up in tbe record, and tbe appellant relied on tbe exception to tbe verdict served to tbe “ adverse” party by section 201 of chapter 14 of our civil practice act, and claimed that said exceptions could be considered on tbe appeal without being incorporated into a bill of exceptions and thus made part of tbe record. Tbe signification of tbe word “adverse” in said section was also argued, and whether in contemplation of our statute, a party having obtained a verdict in bis favor, but with which be was not satisfied, would be an “adverse” party to whom an exception under said section would be saved. Tbe court is of tbe opinion that tbe term “adverse party” in section 201, chapter 14 of our civil practice act, has tbe same signification as to matters “ deemed excepted to” as tbe term aggrieved party in section 436 of chapter 28 in taking an appeal, and that any party aggrieved by any decision can avail himself of the exceptions given by said section.

But before said exceptions can be considered on appeal, they must have been incorporated into a bill of exceptions, and thus made a part of the record. In this respect there is,, in our practice, no distinction between exceptions saved by the statute and other exceptions taken at the trial. (Idaho World Printing Co. v. George Ainslie, ante, 641.)

As to the first error claimed by appellant, to wit, the character of the verdict of the jury, and the reception thereof by the court, there seems to have been no objection whatever at the trial, either to the verdict itself or the reception of it by the court. Section 179 of chapter 13 of our civil practice act provides for the correction, by the jury, under the advice of the court, of informal or insufficient verdicts, and section 208 of chapter 15 of said act provides for a new trial in case the verdict is contrary to law or is not justified by the evidence. No objection was made to the verdict either by motion to correct it or for a new trial. The plaintiff having acquiesced in the verdict, can not object to it in the first instance in the appellate court. (Perkins v. Wilson & Garretson, 3 Cal. 137; Hicks v. Coleman, 25 Id. 146; Duff v. Fisher, 15 Id. 380.)

As to the third and fourth assignments of error, section 215 of chapter 16 of our civil practice act requires the clerk to enter judgment in conformity to the verdict, and unless the aggrieved party takes the necessary steps to. correct it, it was clearly his duty to do so.

If the judgment as entered is irregular as embracing too many parties, the proper practice is to move to correct it in the court below. (Mulliken v. Hull & Co., 5 Cal. 246; De Castro v. Richardson, 25 Id. 53; Morrison v. Dopman, 3 Id. 257; Rousset v. Boyle, 45 Id. 64.)

The second assignment of error by plaintiff, namely, that the court erred in refusing to enter judgment against West for the sum claimed in the complaint, seems not well taken, as the record does not show, and it was not contended on the argument tbat tbe plaintiff ever asked, tbat defendant "West be defaulted or tbat judgment be entered against bim.

We find nothing in tbe record tbat would authorize tbe court to interfere with tbe judgment below, and it is therefore affirmed.