make a further report herein, stating [his findings of fact and conclusions of law separately; or, his finding upon the question, here briefly state question]. § 1343. Motion to set aside report and for a new trial. [TITLE.] Form No. 440. Sir: Please take notice, that upon the report of O. P., Esq., the referee herein, heretofore filed and upon the pleadings and papers on file in this action [and the affidavits of E. F. and G. H., of which copies are herewith served on you], the plaintiff [or, defendant] will move the court, on the . . . day of . . ., 19.., at the courthouse in the city of..., in said county, at the opening of court on that day, or as soon thereafter as counsel can be heard, for an order vacating and setting aside the said report of the referee, and directing a new trial of the issues in this action. [DATE.] To [address], ... Attorney. M. N., . . . Attorney. § 1344. Order confirming, setting aside, or amending referee's report. [TITLE.] Form No. 441. This cause coming on to be heard on the . . . day of . . 19.., upon the motion of A. B., the plaintiff [or, defendant], to [confirm the report of O. P., Esq., referee herein; or, to alter the report of O. P., referee herein; or, to modify the report of O. P., referee herein; or, to set aside the report of O. P., referee herein]; and said motion having been heard upon the pleadings, the evidence taken, and the findings of said referee, and the [here specify any other papers that may have been used upon the motion], and after hearing G. H., Esq., for the . . ., for the motion, and L. M., Esq., in opposition, and being advised in the premises: Ordered, that the said report of the referee herein be and the same is hereby confirmed, and that judgment be entered in accordance therewith, to-wit: [here specify the judgment to be entered]; or, Ordered, that the said report be altered and modified in the following respects, to-wit: [here specify the alteration or modification], and that judgment be entered upon the same as so altered and modified, to-wit: [here specify the substance of the judgment ordered]; or, Ordered, that the said report be and the same is hereby set aside, [and that a trial by the court of the several issues so referred be had]; or, Ordered, that said report be referred back to said referee, who is directed to amend the same in the following respects, namely, [here specify the nature of the amendments directed]. By the Court: J. K., Judge. CHAPTER XLIX. EXCEPTIONS. § 1345. In general.-An exception is an objection usually made during the trial of a cause, and which would not appear of record in the case unless so taken. It is always interposed upon the theory that some ruling had been made by the court which is erroneous, and to which erroneous decision or ruling the party makes an objection. Such exception is either noted by the clerk of the court or the official reporter, if there be one, or in the judge's minutes, or, what is more usual, and indeed the better practice, it is briefly written out by the attorney objecting at the time, and then corrected and signed by the court, and thus becomes a bill of exceptions, on which the party may appeal to the supreme court without further assignment of errors.1 An exception to secure a reversal of the decision must go to some vital point, something material; not to a mere slight or trifling error. It is not every error which will be reviewed by an appellate court. The exception should state the point with clearness, so that there can be no question in the higher courts relative to what the question is. No particular form is necessary to be adopted. Any language, written even in a very informal manner, if it points out the alleged error with clearness, is good. No specific rule can be laid down to govern each case, but one thing should always be the rule: an objection should not be interposed at random with the hope merely of saving a point not then in sight. An exception is taken at the trial to a decision upon a matter of law, whether such trial be by jury, court, or referees, and whether the decision be made during the formation of a jury, or in the admission of evidence, or in the charge to a jury, or at any other time, from the calling of the action for trial to the rendering of the verdict or decision. The verdict of the jury, the final decision in an action or proceeding, an interlocutory order or decision finally determining the rights of the parties, or some of them; an order or decision from which an appeal may be taken; an order 1 See Cal. Code Civ. Proc., § 646. 2 Quivey v. Gambert, 32 Cal. 304. sustaining or overruling a demurrer, allowing or refusing to allow an amendment to a pleading, striking out a pleading or portion thereof, refusing a continuance, modifying, giving, or refusing to give, in whole or in part, an instruction to the jury; an order made upon ex parte application; and an order or decision made in the absence of a party, are deemed to have been excepted to.3 The sole object of a bill of exceptions is to make a record of the special action of the court of what is not record by the general law. And it is not necessary to embody therein any matter of record. Under Colorado practice, all matters dehors the record proper must be preserved by bill of exceptions, and this is true in equitable as well as legal actions. But what belongs to the record proper, and is contained therein, cannot be contradicted, qualified, or varied by anything contained in a bill of exceptions. But documents and affidavits, to be reviewed by the appellate court, must be embodied in a bill of exceptions or record. So of affidavits as to the incompetency of a juror." 6 Where the record on appeal did not contain the whole judgment-roll, and the absent portions were not presented in a bill of exceptions or statement on appeal, no questions arising on matters contained in such absent portions can be made on appeal.10 But where the bill of exceptions appears upon its face to have been regularly taken, the court cannot presume against the record. Nor will it sustain mere technical exceptions taken in the course of the trial, where the judgment seems right on the merits, unless compelled by law so to do.12 If there is a technical variance between the evidence and finding of facts and the pleading, and no objection is made on that ground in the court below, but the objection is taken for the first time in 11 3 Cal. Code Civ. Proc., § 647, as amended 1907. See Ganceart V. Henry, 98 Cal. 283, 33 Pac. 92; Davis v. Honey Lake Water Co., 98 Cal. 415, 417, 33 Pac. 270. Parsons v. Davis, 3 Cal. 425. 6 Putnam v. Sea, 8 Colo. 298, 7 Pac. 172; Marshall etc. Min. Co. v. Kirtley, 8 Colo. 108, 5 Pac. 649; Bergundthal v. Bailey, 15 Colo. 257, 25 Pac. 86; Brink v. Posey, 11 Colo. 521, 19 Pac. 467; Hammond v. Bovee, 4 Colo. App. 269, 35 Pac. 674. 7 Kirkpatrick v. Wheeler, 8 Colo. 414, 8 Pac. 654. 8 Gates v. Buckingham, 4 Cal. 286. People v. Stonecifer, 6 Cal. 411. 10 Hastings v. Cunningham, 35 Cal. 549; Sather etc. Co. v. Arthur R. Briggs Co., 138 Cal. 724, 72 Pac. 352. 11 United States v. Hodge, 6 How. 279, 12 L. Ed. 437. 12 English v. Johnson, 17 Cal. 107, 76 Am. Dec. 574. 15 the appellate court, the judgment will not be reversed by reason of such variance.13 So, likewise, on the ground of variance between pleadings and proof, or of admission of evidence not within the issue,14 or in respect of a defect of the evidence produced, or of defects in the pleadings themselves,18 or of an erroneous admission or assumption of the existence of matters not proved in fact.17 Where the transcript contained, together with the judgment-roll, a copy of an order, certified to by the clerk, sustaining a demurrer to a replication, and there was no statement or bill of exceptions, it was held that the appellate court could not review the action of the court below upon the demurrer, 18 A party may take his bill of exceptions to the admission or exclusion of testimony, or to the rulings of the judge on points of law, and it shall not be necessary to embody in such bill anything more than sufficient facts to show the point and pertinency of the exception taken; the presiding judge shall sign the same, as the truth of the case may be, which bill shall then become a part of the record; and it shall only be necessary to bring to the supreme court a transcript of the pleadings and the judgment, and the bill or bills of exceptions so taken. A bill of exceptions. must be reduced to writing, and settled by the judge within the time prescribed by the statute.19 Exceptions must be taken and preserved in substantial compliance with the statute." The supreme court notices only the errors committed against the appellant, not those committed against the successful party.21 Exceptions taken by the prevailing party are not available to his adversary, unless there be a cross-appeal.22 Where the respondent takes no appeal,-at least, where he files no transcript and assigns no errors,-the judgment will not be reversed at his instance.23 It has been the practice of the supreme court to examine 13 Dikeman v. Norrie, 36 Cal. 94; McDermott v. Grimm, 4 Colo. App. 39, 34 Pac. 909. 14 Commercial Bank of Rochester v. Shuart, 46 Barb. 372; Allen v. Merchants' Mut. Ins. Co., 46 Barb. 642. 15 Colwell v. Lawrence, 24 How. Pr. 324. 16 Simmons v. Sisson, 26 N. Y. 264; Ashley v. Marshall, 29 N. Y. 494. 17 People v. Third Ave. R. R. Co., 30 How. Pr. 121; Paige v. Fazackerly, 20 36 Barb. 392; McDonald v. Christie, 42 Barb. 36. 18 Bostwick v. McCorkle, 22 Cal. 669. 19 Cal. Code Civ. Proc., § 650. 20 Randall v. Greenhood, 3 Mont. 506; Blackwell v. McLean, 9 Wash. 301, 37 Pac. 317; German Nat. Bank v. Elwood, 16 Colo. 244, 27 Pac. 705. 21 Frank v. Doane, 15 Cal. 304. 22 Beach v. Cooke, 28 N. Y. 508, 86 Am. Dec. 260; Dougherty v. Henarie, 47 Cal. 13. 23 Travers v. Crane, 15 Cal. 12. |