Brown v. Savings Bank of the Grand Fountain

Mr. Justice Robb

delivered the opinion of the Court:

It is now urged by appellant that the court erred in not entering a judgment in favor of the plaintiff, and assessing his damages after finding the issue upon the plea in abatement in his favor. We think the mere statement of the case demonstrates that the appellant is not in a position to insist upon this assignment of error. It may be conceded that, under the common law, the finding in favor of the plaintiff of an issue of fact raised by a plea in abatement, entitles the plaintiff to a judgment on the merits. Whether the provisions of the Code [sec. 399, 31 Stat. at L. 1252, chap. 85d] with respect to amendments modifies this rule of the common law, we need not stop to inquire, for the reason that an objection will not afterwards avail the party raising it, unless it states the grounds upon which it is based, and points out clearly the errors complained of, in order that the court may be given an opportunity to correct them. 8 Enc. PI. & Pr. p. 163.

In the case of Thaw v. Ritchie, 5 Mackey, 228, the court said: “The last bill of exceptions is peculiar. It shows that two instructions were asked on behalf of the defendant, both of which were granted against the plaintiff’s objection, and at the same time the justice stated that there was no substantial disagreement between the parties as to the facts, and that he held that the plaintiff could not prevail against the title which the defendant furnished, and instructed the jury to find for the defendant, to which the plaintiff excepted. It does not appear whether the exception was to the granting of the instructions prayed, or to the statement that there was no disagreement as to the facts, or the instruction that the plaintiff could not prevail against the title furnished by the defendant, -or the final peremptory instruction to find for the defendant. We are not bound to notice this exception, and there is less occasion for it, because after the previous ruling below, which we have sustained, it could do no harm if technically erroneous.” See also Langdon v. Evans, 3 Mackey, 1; Cureton v. Dargan, 16 S. C. 619; Pennsylvania Co. v. Horton, 132 Ind. 189, 31 N. E. 45; Springfield F. & M. Ins. Co. v. Sea, 21 Wall. 162, 22 L. ed. 511; Herman v. Jeffries, 4 Mont. 513, 1 Pac. 11.

Appellant contends for a strict enforcement of the technical rules of common-law pleading, and he must, therefore, show that he has omitted nothing in laying the foundation for his contention. The ruling upon which this assignment of error is based, and to which a general exception only was noted, granted the appellee leave “to plead to the merits within twenty-four hours, upon the payment of all costs to date in this cause.” Whether the exception was to the substance of the ruling, or to the time given within which to plead over, or to the terms imposed, does not appear. Neither are we able to say, from what followed, that the exception related to the substance of the ruling, as no motion was made for judgment, and there was joinder of issue on the pleas subsequently filed, and an actual trial before a jury, all of which would tend rather to negative the idea that the exception was to the substance, and not the form and conditions, of the court’s ruling.

The attention of the court should have been specifically directed to the point now made, at the time leave was given to plead to the merits, and before appellant joined issue and went to trial on the merits. Under his present view of the case, appellant, by joining issue on the merits, caused the court to go through an idle ceremony when a jury trial was had to determine that issue. This demonstrates the importance and necessity of seasonably directing the court’s attention to the specific objection raised, in order that an opportunity may he given the court to rule thereon. The appellant in this case contended himself with making a general objection, did not move for judgment, and did not complain further, until a jury after a trial on the merits, in which he had participated, found against him.

Without stopping to inquire whether the acts of appellant subsequent, to the ruling of the court, permitting appellee to plead, to the merits, constituted a waiver of his objection to the ruling, we hold that the objection was too general to raise the question contained in this assigment of errror, and therefore affirm the judgment, with costs. Affirmed.