Lamkin v. Sterling

MoBride, C. J.,

delivered tbe opinion of tbe court,

Cum-mins, J., concurring.

This was an action of mandamus to compel defendant, Sterling, territorial treasurer, to pay territorial warrant No. 212, for one hundred and sixty-six dollars and sixty-six cents, to tbe defendant, who was tbe owner and holder._ Tbe facts alleged are that tbe territory was indebted to tbe defendant as territorial auditor; that he settled and audited said account, drew bis warrant for the sum due, and that it was presented in its order for payment; that tbe funds applicable to tbe payment of the same were in tbe bands of defendant, and that be refused to pay tbe warrant; whereupon tbe plaintiff filed bis complaint with tbe judge of tbe third judicial district, setting forth the facts and praying that a writ of mandate issue to compel tbe defendant to pay said warrant or show cause for bis refusal. Tbe defendant appeared by counsel before tbe judge at chambers and filed bis motion to quash tbe writ, on tbe ground that tbe facts stated in tbe complaint were not sufficient to entitle tbe plaintiff to tbe writ, and constituted no cause of action. . Tbe record discloses a demurrer, but as no action appears to have been bad upon it, and as tbe motion to quash is tbe proper mode of reaching tbe point made by tbe demurrer, we suppose that tbe party waived it on tbe bearing.

The motion to quash was denied on the hearing, and no further answer or defense being made, the writ was made peremptory. No exception was taken to the ruling on the motion, and the plaintiff haying given notice of appeal, the case is before us for review. There is no assignment of errors on file, and the appellant seeks for reversal of the judgment on the ground that there are errors in the record.

The plaintiff, when this case was called, moved to dismiss the appeal on the ground that there is no assignment of errors, and that as no exception had been taken in the court below, there was nothing before this court for review.

As the practice of the court had never been fully announced on the points involved in the motion, we declined to pass upon it on the brief argument submitted, and directed the counsel to proceed with the argument on the merits, reserving the consideration of the motion for a more deliberate examination.

It is undoubtedly the general rule that when a party seeks to reverse a judgment rendered in the inferior court he must except to the ruling of the court and assign the error in this court on appeal. If a party can submit to rulings in the lower court, taking no exceptions, and after-wards go back into the record and hunt up errors and bring them into this court and avail himself of them without assignment, then there are few cases that might not be reversed. The reason for the rule is that every presumption of law is in favor of the judgment below, and that if a party does not except to a wrong ruling at the time it was made, he is deemed to have acquiesced in the decision and waived his objection. Another reason is that it should appear that the precise point adjudged below had received the attention of the court and have been passed upon adversely to the rights of the appellant.

But it is claimed that an appellant may assign errors apparent on the judgment roll without having taken his exception. We have examined the authorities in California, and they are numerous, and while there is some little conflict in the practice, the later rule, and far the better one, iu our opinion, is that the court will only examine the errors excepted to and assigned; The better authorities go even so far as to ,say that the appellant must not only except to the ruling in the lower court, but he must specifically assign the error, or the exception will be disregarded. In practice many exceptions are noted which the party himself, on reflection, does not deem reliable, and hence he is called upon specifically to assign such as he wishes to stand upon in the appellate court.

The exceptions to the rule are that where a complaint is so radically defective that it discloses no cause of action and will not support a judgment, and where a judgment has been taken by default and the appellant could not except by reason of his non-appearance, and where the plaintiff was bound to see that the proceedings were regular and legal, then in such case the appellant may assign the error though he have taken no exception. As this judgment was not on default we need not consider that branch of the exception, and turn to the other branch to see if the case at bar comes within it.

The complaint sets up that the territory was indebted to him for services in an official capacity; that a warrant was drawn evidencing the indebtedness; that it was presented to the proper officer for payment; that he had funds applicable to its discharge, and refused to pay. Upon the face of this complaint a cause of action was shown: If the warrant was improperly drawn, if the man who drew it had no authority to do so, or if it was for a larger amount than he was entitled to, or it was deficient in any of the particu-' lars claimed on the argument, it should have been set up either by way of special demurrer or by answer stating the defects. For illustration: A suit is brought by A. against B. to recover the amount of a promissory note, and it should appear upon the face of the complaint that the right to recover was barred by the statute of limitations. B. denies the indebtedness, and on the trial the issue is found for A. and a judgment rendered. He appeals from the judgment, and assigns for error that it appears from the face of the complaint that the action was barred by the statutes of limitation. Here, although the appellant would show an error which if he had urged in the court below and had taken his exceptions, his right to recover the judgment would be clear; yet, having failed to avail himself of the objection there, he could not raise it in the court above. The rule is that where there is sufficient in a complaint to support a judgment, notwithstanding it may be defectively stated and be open to demurrer in the first instance, still if the judgment thus rendered be not excepted to, the appellant has lost his rights, and can not reverse the judgment, however patent the error. The rule is well stated in 16 Cal. 533, by Judge Field, and is affirmed, in many others, both prior and subsequent to that case.

The order in this case will be that the appeal be dismissed and the judgment below affirmed, with costs.