Maddox v. McHattan

BROWN, J.

Responding to the assignments of error, we have searched the record in vain for the purpose of examining the exceptions noted therein to the rulings of the court. We find that plaintiff has reserved no exceptions. The only exceptions disclosed are defendant’s exceptions to rulings made upon objections interposed by Mm. This is not an equity suit, where the cause is tried de novo. Long ago, this court declared the law to be that, in an action at law, it is not error simply, but error legally excepted to, that constitutes ground for reversal: Kearney v. Snodgrass, 12 Or. 311 (7 Pac. 309). That pronouncement of the law relating to practice has been repeated by this court again and again. A few of the more recent cases are: Nibley v. Delahunt, 105 Or. 46 (209 Pac. 473); Nally v. Richmond, 105 Or. 462 (209 Pac. 871); State v. Chase, 106 Or. 263 (211 Pac. 920); Davis v. Arnold Irr. Co., 107 Or. 93 (213 Pac. 1013).

The plaintiff says in his assignment that the court erred in its finding of fact No. 3 to the effect that no competent evidence was introduced by plaintiff and that there was a total failure of proof.

The plaintiff not only failed to except to the findings made by the court, but failed to make any application to the trial court for different findings. In fact, the record does not show- that the plaintiff ever made any application to the court for any findings, of any kind or character.

The law of this state, as announced by this court in Taffe v. Smyth, 62 Or. 227 (125 Pac. 308), is:

“When an action is tried by stipulation without the intervention of a jury, and from the evidence received findings of fact are made upon all the disputed questions to which the parties in the pleadings have narrowed their respective allegations, such conclusions will not be disturbed on appeal unless it satisfactorily appears, from an inspection of the bill of exceptions, that application was made to the trial court for further or different findings, and the request therefor denied: Hicklin v. McClear, 18 Or. 126 (22 Pac. 1057); Umatilla Irr. Co. v. Barnhart, 22 Or. 389 (30 Pac. 37); McClung v. McPherson, 47 Or. 73 (81 Pac. 567, 82 Pac. 13).

In the case of Hicklin v. McClear, 18 Or. 126 (22 Pac. 1057), Mr. Chief Justice Thayer wrote:

“Whether or not that court was justified by the weight of evidence in making the findings, this court cannot consider. Nor can it consider any failure or neglect on the part of the circuit court to make other findings from the evidence before it, which would be material in the case, unless the point is specially made and brought here. If the findings of the circuit court in such a case are wholly unsupported by the evidence, and that fact is made to appear by a bill of exceptions purporting to contain all the evidence upon the point, this court would disregard the findings. And should the circuit court fail or neglect to make a material finding upon the evidence before it, and the bill of exceptions showed that the court was specially requested to make the finding, and it had refused to do so, this court would doubtless deem an exception to such refusal well taken. I am induced to make these suggestions because they involve an important point in practice, to which the attention of the profession should be called.”

For the motion, Messrs. O’Neill & Irwin. Contra, Messrs. Rutenic & Yaden.

Such has been the established practice in the courts of this state from that time until the present day.

See also Franklin v. Northrup, 107 Or. 537, at p. 556 (215 Pac. 494), and the cases there collected.

This practice is not peculiar to Oregon. In other jurisdictions it is a general rule that objections to findings made by the trial court cannot be raised for the first time on appeal. And if a review of findings for alleged error is sought, an exception must be saved: 8 Ency. of Plead. & Prac. 273; 2 R. C. L., p. 69; 8 Stand. Ency. of Proc. 1076.

This case is affirmed.

Affirmed. Rehearing Denied.