the case only upon the errors assigned by the appellant, and not to look into the exceptions taken by respondent." The party alleging error on appeal must make it affirmatively appear,25 as the court will not consider on appeal rulings to which no exception was taken in the court below.26 If parties choose to submit to rulings without taking exceptions, they cannot afterwards. question them here.27 And the exception, when taken, must be specific, and must point out the exact nature and extent of the objection relied on, to be available for a review. But where the ruling is in general terms, a general exception may suffice.28 A mere rescript of the testimony by question and answer, with the objections taken and the rulings thereon, will not be considered.29 It is important that each specification of error be complete within. itself so as to clearly present the question involved.30

§ 1346. Error in law. For error in law excepted to, an appeal lies without motion for a new trial.31 So the granting of a nonsuit on the facts is a question of law, and may be reviewed on appeal. without motion for a new trial.82 But it must be excepted to and specified as an error of law occurring at the trial, and appear in the stating or substantive part of the bill of exceptions or statement.33 When errors of law are relied upon as errors on appeal, the particular errors must be pointed out by the counsel; otherwise, they will be disregarded, unless they plainly appear from the transcript on appeal. Error in law occurring at a trial may be

34

24 Jackson v. Feather River Water Co., 14 Cal. 18; Poppe v. Athearn, 42 Cal. 607.

25 Todd v. Winants, 36 Cal. 129. 26 Keeran v. Griffith, 34 Cal. 581; Lightner v. Menzell, 35 Cal. 452.

27 Frink v. Alsip, 49 Cal. 105. See Globe Investment Co. v. Boyum, 3 N. Dak. 538, 58 N. W. 339.

28 Sawyer v. Chambers, 44 Barb. 42, 43 Barb. 622; Collyer v. Collins, 17 Abb. Pr. 467.

29 Caldwell v. Parks, 50 Cal. 502. See, also, People v. Getty, 49 Cal. 584; Cal. Code Civ. Proc., § 648. As to sufficiency of assignment of errors, consult Shinnock v. Kuhn, 4 N. Mex. 159 (234), 13 Pac. 424; Lamy v. Lamy, 4 N. Mex. 43 (29), 12 Pac. 650, 140, (291), 13 Pac. 178; Deemer

v. Falkenberg, 4 N. Mex. 57 (149), 12 Pac. 717; Watson v. Gray's Harbor Brick Co., 3 Wash. 283, 28 Pac. 527; Wolcott v. Bachman, 3 Wyo. 335, 23 Pac. 72, 673; Johnson v. Fanno, 23 Or. 514, 32 Pac. 396; Archbishop v. Hack, 23 Or. 536, 32 Pac. 402; Thompson v. New York Life Ins. Co., 21 Or. 466, 28 Pac. 628.

30 Herbert v. Dufur, 23 Or. 462, 32 Pac. 302. See Bridal Veil Lumber Co. v. Johnson, 25 Or. 105, 34 Pac. 1026.

31 Rice v. Gashirie, 13 Cal. 53. 82 Cravens v. Dewey, 13 Cal. 42; Darst v. Rush, 14 Cal. 83.

33 Hanna v. De Garmo, 140 Cal. 172, 73 Pac. 830; In re Kasson's Est., 141 Cal. 33, 74 Pac. 436.

34 Sanchez v. McMahon, 35 Cal.

35

reviewed upon a bill of exceptions, as well as upon a motion for a new trial. When an appeal is taken on a bill of exceptions, errors of law occurring at the time may be reviewed, although no specification of the particular errors of law on which the appellant relies is contained in the bill.36 But an order striking out a statement on motion for a new trial cannot be brought before the supreme court for review by a bill of exceptions.37 On appeal by a plaintiff from an order overruling a motion for a new trial made by him on the ground of insufficiency of evidence to justify the verdict, an exception taken by defendant on the trial to the competency of a witness who testified for plaintiff will not be considered. The objection that the judgment is not authorized by the pleadings may be taken on an appeal from the judgmentroll alone. The fact that a motion for a new trial was made which did not state this as one of the grounds does not operate as a waiver of the objection.39

38

The United States supreme court can notice a material and incurable defect in the pleadings and verdict, as they are represented in the record to have existed in the court below, although such defect is not noticed in the bill of exceptions, nor suggested by the counsel in argument here.10 Where the court below tries the cause without a jury, the proper mode of reserving questions of law is to ask the court to decide them, and note the refusal in a bill of exceptions. Where plaintiffs, having excepted to the ruling of the court excluding certain evidence, take, in consequence of such ruling, a nonsuit, with leave to move to set aside, they do not waive any of their rights as to the exceptions taken. Objections to the introduction of evidence are confined on appeal to the grounds taken below.12

218. See as to positive waiver of objection on the ground of error of law committed at the trial, unless the exception be taken to it at the time, McCartney v. Fitz-Henry, 16 Cal. 186; Lightner v. Menzel, 35 Cal. 452; King v. Meyer, 35 Cal. 646; Henry v. Southern Pacific R. R. Co., 50 Cal. 176; Barlow v. Scott, 24 N. Y. 40; Pollen v. Leroy, 10 Bosw. 38; Enos v. Eigenbrodt, 32 N. Y. 444.

35 Walls v. Preston, 25 Cal. 61. 36 Shadburne v. Daly, 76 Cal. 355, 18 Pac. 403; Hagman v. Williams, 88 Cal. 146, 25 Pac. 1111.

87 Quivey v. Gambert, 32 Cal. 304. But see Cal. Code Civ. Proc., § 651; Lucas v. Mayor etc. City of Marysville, 44 Cal. 212.

38 Pierce v. Jackson, 21 Cal. 636. 39 Putnam v. Lamphier, 36 Cal. 151. 40 Garland v. Davis, 4 How. 131, 11 L. Ed. 907.

41 Griswold v. Sharpe, 2 Cal. 17; Lucas v. San Francisco, 28 Cal. 591.

42 Natoma W. & M. Co. v. Clarkin, 14 Cal. 549; King v. Meyer, 35 Cal. 646. When too late to raise question of variance, see Brace v. Doble, 3 S. Dak. 416, 53 N. W. 859.

46

§ 1347. Exceptions to evidence-Admission of evidence.-A bill of exceptions which states that the paper was "offered" in evidence does not show that the paper was read in evidence.43 An objection to the sufficiency of evidence should be made at the time. the same is offered to be introduced, so that a party may have the opportunity of supplying the necessary evidence." An exception must be made, or the objection is waived, and cannot afterwards be raised.45 The same applies to objectionable remarks made by the court on the exclusion of evidence. As to whether an exception lies to an illegal question asked by a juror, quære.** The evidence of an incompetent witness is competent when admitted without objection.48 The objection to evidence as incompetent, irrelevant, and immaterial does not cover the point that it is hearsay.49 Objections to the introduction of evidence must be taken on the trial below; they cannot be taken for the first time in the appellate court.50 Objections to a deposition cannot be made unless taken when it is offered in evidence.51 Appellant must have offered the testimony and taken exception to the court's ruling excluding such testimony.52

§ 1348. Documentary evidence.-An exception to the admissibility of a deed in evidence must be taken on the trial of the cause at nisi prius. The point cannot be considered on appeal.53 A statement in a bill of exceptions that the plaintiff offered in evidence a deed to him and others, conveying the demanded premises to the parties therein named, according to their respective interests, does not show whether the deed conveyed the land to the parties as tenants in common or in severalty."

43 Page v. O'Brien, 36 Cal. 559. 44 Goodale v. West, 5 Cal. 339; Mott v. Smith, 16 Cal. 533; Hoxie v. Allen, 38 N. Y. 175.

45 Castro v. Gill, 5 Cal. 42; Letter v. Putney, 7 Cal. 423.

46 Halverson v. Seattle El. Co., 35 Wash. 600, 77 Pac. 1058.

47 Kelly v. Commonwealth Ins. Co., 10 Bosw. 82.

48 Weidenhoft v. Primm, 16 Wyo. 340, 94 Pac. 453.

49 Dillard v. Olalla (Or.), 94 Pac. 966.

50 Covillaud v. Tanner, 7 Cal. 38; Fountain v. Pettee, 38 N. Y. 184; Laber v. Cooper, 7 Wall. 565, 19 L.

Ed. 151; O'Connell v. Main etc. Hotel Co., 90 Cal. 515, 27 Pac. 323; Mora v. The People, 19 Colo. 255, 35 Pac. 179; Story v. Black, 5 Mont. 26, 51 Am. Rep. 37, 1 Pac. 1; Murray v. Silver City etc. R. R. Co., 3 N. Mex. 337, (580), 9 Pac. 369; Higgins v. Armstrong, 9 Colo. 38, 10 Pac. 232; Austin v. Andrews, 71 Cal. 98, 16 Pac. 546.

51 Jones v. Loye, 9 Cal. 70; Hobbs v. Duff, 43 Cal. 485.

52 First Nat. Bank v. Oregon Paper Co., 42 Or. 398, 71 Pac. 144.

53 Pearson v. Snodgrass, 5 Cal. 478; Posten v. Rassette, 5 Cal. 467. 54 Page v. O'Brien, 36 Cal. 559.

56

§ 1349. Irrelevant testimony. If in a trial before the court, without a jury, irrelevant testimony is received, with the understanding that it is not to be considered by the court unless other testimony is afterwards introduced making it relevant, and such testimony is not afterwards introduced, the presumption will be that the court discarded the evidence in rendering judgment, and the error is without consequence.55 To be considered, it must appear that a question objected to was answered unfavorably to appellant. A conditional exception to evidence, subject to a future decision, must be repeated positively after decision made.57 An exception is nullified where the defect excepted to is supplied during the trial.58 A party cannot, by consenting to admit evidence "subject to all legal exceptions," absolve himself from the necessity of taking exceptions to the relevancy or sufficiency thereof, and devolve the responsibility of discovering whatever objections may exist on the court below, and after fishing for a verdict, for the first time assign his objections in the supreme court.59

§ 1350. Insufficiency of evidence. The usual mode in which error in findings, on the ground of insufficiency of evidence to support them, is reached on appeal, is by making such insufficiency a ground of motion for a new trial; but it seems that under the code the party aggrieved may either move for a new trial on that ground or specify in a bill of exceptions in what respect the evidence did not justify the decision, and take up the evidence upon the point in question."0

§ 1351. Proving exceptions.-If the judge in any case refuse to allow an exception in accordance with the facts, the party desiring the bill settled may apply by petition to the supreme court to prove the same. The application may be made in the mode and manner, and under such regulations, as that court may prescribe; and the bill, when proven, must be certified by the chief justice

55 Jones v. Morse, 36 Cal. 205. 56 Rio Grande etc. Ry. v. Utah Nursery Co., 25 Utah, 187, 70 Pac.

859.

57 Bihin v. Bihin, 17 Abb. Pr. 19. 58 Cronnse v. Fitch, 14 Abb. Pr. 346; Park Bank v. Tilton, 15 Abb. Pr. 384.

P. P. F. Vol, I-55

59 Covillaud v. Tanner, 7 Cal. 38.

60 Jones v. Shay, 50 Cal. 508. See Cal. Code Civ. Proc., § 648; Oregon Short Line v. Russell, 27 Utah, 457, 76 Pac. 345; Klenk v. Oregon S. L. Ry. Co., 27 Utah, 428, 76 Pac. 214; Robertson v. Longley, 28 Mont. 128, 72 Pac. 423.

as correct, and filed with the clerk of the court in which the action was tried, and when so filed it has the same force and effect as if settled by the judge who tried the cause.61

63

64

65

§ 1352. Special exception necessary.-Where a party objects to the admission of testimony on trial, he must state the point of his objection at the time. General objections will not do.62 The party should lay his finger on the point at the time of trial; otherwise, the appellate court cannot review it. A party is confined to the objections raised upon the trial. General objection is not good unless the evidence objected to be absolutely incompetent, in which case such general objection is available; or where the testimony could not, under any possible circumstances, have been relevant.66 So where error is alleged in the exclusion of testimony, it must clearly appear on the face of the exception that the testimony was, not that possibly it might have been, relevant. Where a defendant's objection to the admission of testimony on the trial is general, he cannot be permitted to make it special for the first time in the appellate court."

67

§ 1353. When exception lies.-In New York, the comments of the judge upon the evidence are not subject to exception.69 It is questionable whether an exception lies to an illegal question put by a juror.70

§ 1354. Exceptions - Relative to Relative to matters of evidence Generally. The introduction of testimony without objection

61 As to the mode, etc., see Cal. Code Civ. Proc., § 652, as amended 1907.

62 Petterson v. Stockton etc. Co., 134 Cal. 244, 66 Pac. 304; People v. Apple, 7 Cal. 290; Kiler v. Kimbal, 10 Cal. 267; Martin v. Travers, 12 Cal. 245; Franz Falk Brewing Co. v. Mielenz, 5 Dak. 136, 37 N. W. 728; Crocker v. Carpenter, 98 Cal. 418, 33 Pac. 271; Garber v. Gianella, 98 Cal. 527, 33 Pac. 458; Harris v. Zanone, 93 Cal. 59, 28 Pac. 845; City of Helena v. Albertose, 8 Mont. 499, 20 Pac. 817; Earles v. Bigelow, 7 Wash. 581, 35 Pac. 390; Ward v. Wilms, 16 Colo. 86, 27 Pac. 247; Rosina v. Trowbridge, 20 Nev. 105, 17 Pac. 751;

Kleinschmidt v. Iler, 6 Mont. 122, 9
Pac. 901.

63 Id.; Sneed v. Osborn, 25 Cal. 619.

64 Waterville Mfg. Co. v. Brown, 9 How. Pr. 27; Smith v. Floyd, 18 Barb. 523. See, however, Keyes v. Devlin, 3 E. D. Smith, 518.

65 Nightingale v. Scannell, 18 Cal.

315.

66 Dreux v. Domec, 18 Cal. 83; Sneed v. Osborn, 25 Cal. 619. 67 Cohn v. Mulford, 15 Cal. 50. 68 People v. Glenn, 10 Cal. 32. 69 Nolton v. Moses, 3 Barb. 31; Gardner v. Barden, 34 N. Y. 433.

70 Kelly v. Commonwealth Ins. Co., 10 Bosw. 82.