Miller v. Wade
Before: McFarland, Paterson, Works
Synopsis
Nonsuit—Bill of Exceptions—Specifications of Error — Appeal.— On an appeal from a judgment of nonsuit, the ruling of the court in granting the nonsuit cannot be reviewed unless the. bill of exceptions assigns or specifies the ruling of the court as error.
Id. — Review of Evidence — Time for Appeal — Construction of Code. — The ruling on a motion for a nonsuit is a “decision,” within the meaning of section 939 of the Code of Civil Procedure, and as the whole question depends upon the sufficiency of the evidence to sustain the decision of the trial court upon the motion, the appeal must be taken within sixty days, to be available for a review of the ruling.
Id. —Review of Judgment of Nonsuit — Grounds of Motion — Waiver. — Where a nonsuit is granted, the decision of the trial court will be upheld, if the ruling can be justified on any ground, whether made a ground of the motion or not, and the fact that the record does not show the grounds upon which the motion was made, or that any grounds were assigned, will not justify a reversal of the judgment of nonsuit.
Id. ■— Waiver of Grounds of Motion. — An appellant whose motion for nonsuit is denied must show that he pointed out to the court below the grounds of his motion, and any ground not there urged is waived; but this rule can have no application where the decision is in favor of the moving party.
Opinion — Works
Works, J. This is an appeal by the plaintiff from a judgment of nonsuit. There is a bill of. exceptions, which contains the evidence, and from which it appears that a nonsuit was granted; but the ruling of the court is not assigned or specified as error. Such an assignment has been held to be necessary to present the question to this court. (Schroeder v. Schmidt, 74 Cal. 459; see also Polack v. Gurnee, 66 Cal. 267; Malone v. County of Del Norte, 77 Cal. 217.)
[411]The assignment of error is the pleading which points out the particular question raised and passed upon in the court below, and presented to this court for review. The bill of exceptions is intended to present the facts and the exception which sustains the point made, and thus reserved for our determination. (Pico v. Cohn, 78 Cal. 385.) If this were not so, this court would be compelled, instead of looking to the assignment of errors for the questions presented, to search tlie whole transcript to find them; opposing counsel would have no means of knowing what points would be relied upon, until the briefs were filed in this court, and questions could be urged here that had never been called to the attention of the court below on a motion for a new trial. A different rule was declared in one case, in Department, in which a distinction is made between a statement and a bill of exceptions in this respect. (Shadburn v. Daly, 76 Cal. 355.) It is true, as said in that case, that the statute applies, in terms, to statements only, but this court has held, in a number of cases, that a statement and a bill of exceptions are the same; and where a bill of exceptions is used on a motion for a new trial, and is thereby made to take the place of the statement, it must contain everything necessary to present the question by a statement. Undoubtedly a bill of exceptions might be used where a statement might not be proper, and in many cases no specification of error would be necessary. But where a bill of .exceptions is used as the basis of a motion for a new trial, it is a statement. The court below has a right under the code to have specifically pointed out all errors relied upon in making the motion, and this court can only be called upon to pass upon such questions as have thus been specified and relied upon in the trial court.
That such was the intention of the code we have no doubt, and it is absolutely necessary that it should be so, in order that cases may be fairly presented and properly decided. The same rule must prevail in any case where
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