under issues defectively framed is a waiver of such defects, and they will not be considered on appeal." If the record on appeal does not contain all the evidence, an objection that the judgment is not sustained by the evidence will not be considered.72 An objection to the admission of a judgment-roll in evidence, on the ground of variance between the averments of the complaint and the judgment-roll, where one named the amount of the judgment and costs in solido, and the other stated the amounts separately, is frivolous.73 In an equitable action, under Washington practice, it is not necessary for either party to take an exception to a ruling as to the materiality or competency of testimony offered in the lower court. But it is, nevertheless, the duty of the court to exclude testimony which is wholly irrelevant to the pleadings, when objection is made.75 The conduct of an attorney in his argument before the jury, in referring to matters not in evidence, alleged as one of the grounds of a motion for a new trial, cannot be considered on appeal, where no objection was made, and no exception saved, to the statements when they were made.7 § 1355. Exceptions to findings-Defective findings.-Defective findings should be specially excepted to in the court below." And the exceptions should point out wherein the defect consists.78 A general exception to all the findings is of no avail unless all are erroneous.79 But an exception to each and every part of the findings of facts and conclusions of law which are then enumerated is sufficient on appeal.80 But where judgment. is rendered upon general or special findings, and a new trial is moved for upon a statement containing the evidence, no special 71 Hogan v. Shuart, 11 Mont. 498, 28 Pac. 969. 72 York v. Fortenbury, 15 Colo. 129, 25 Pac. 163. 73 Frevert v. Swift, 19 Nev. 400, 13 Pac. 6. 74 Scully v. Book, 3 Wash. 182, 28 Pac. 556. 75 Davis v. Hinchcliffe, 7 Wash. 199, 34 Pac. 915. 76 Higley v. Gilmer, 3 Mont. 433. 77 Troy v. Clarke, 30 Cal. 419; Green v. Clark, 31 Cal. 591; Hathaway v. Ryan, 35 Cal. 190; Logan v. Hale, 42 Cal. 646; Ogburn v. Connor, 46 Cal. 353, 13 Am. Rep. 213; McClusky v. Gerhauser, 2 Nev. 47, 90 Am. Dec. 512; Collier v. Ervin, 2 Mont. 335; Coglan v. Beard, 67 Cal. 303, 7 Pac. 738. 78 Hidden v. Jordan, 28 Cal. 301; Kenworthy v. Mast, 141 Cal. 268, 74 Pac. 841. 79 Robins v. Paulson, 30 Wash. 459, 70 Pac. 1113; Davies v. Cheadle, 31 Wash. 168, 71 Pac. 728. 80 Young v. Borzone, 26 Wash. 4, 66 Pac. 135. exception to presumed findings or motion in the court below is necessary.81 § 1356. Form, time for filing.-No particular form of exception is required; but when the exception is to the verdict or decision, upon the ground of the insufficiency of the evidence to justify it, the objection must specify the particulars in which such evidence is alleged to be insufficient. The objection must be stated with so much of the evidence or other matter as is necessary to explain it, and no more. Only the substance of the reporter's notes of the evidence shall be stated. Documents on file in the action or proceeding may be copied, or the substance thereof stated, or a reference thereto sufficient to identify them, may be made.82 Separate exceptions to the findings by numbers are sufficient without specification of the grounds of objection, but a general exception to all of five findings of fact is insufficient.84 § 1357. Want of findings. If there be a material fact in respect to which the findings are silent, the party aggrieved may except to them by pointing out the particular defect or omission complained of, and if the court refuse to correct them, the remedy is by appeal. But if, on any material fact, the court finds contrary to or without sufficient evidence, this is ground for a new trial only.85 Where the findings are contrary to or unsupported by the evidence, the only proper proceeding to correct them is a motion for a new trial, and not an exception to the findings. In case of a want of findings, objection cannot be taken unless a finding was asked for and the court omitted or refused the same, and exception was taken to such omission or refusal.87 86 § 1358. When necessary.-Exceptions need not be taken where the facts found do not warrant the judgment, or where they 81 Steinback v. Krone, 36 Cal. 303. 82 Cal. Code Civ. Proc., § 648. As to time of filing exceptions to findings, and serving of notice, see Cal. Code Civ. Proc., §§ 649, 650, 651. See, also, Gay v. Moss, 34 Cal. 125. 83 Burrows v. Kinsley, 27 Wash. 694, 68 Pac. 332; Big Hatchet etc. Co. v. Colvin, 19 Colo. App. 405, 75 Pac. 605. 84 Peters v. Lewis, 33 Wash. 617, 74 Pac. 815. But see Rice v. Williams, 18 Colo. App. 330, 71 Pac. 433. 85 Hathaway v. Ryan, 35 Cal. 188. See Mulcahy v. Glazier, 51 Cal. 626. 86 Hidden v. Jordan, 28 Cal. 304; Cowing v. Rogers, 34 Cal. 648; Rice v. Inskeep, 34 Cal. 224. 87 Lucas v. City of San Francisco, 28 Cal. 591; Hidden v. Jordan, 28 are inconsistent with the judgment.88 The office of exceptions to findings is to supply the want of findings where, upon any of the issues, the facts are insufficiently found, or not found at all.89 A general exception to finding of mixed questions of law and fact does not raise the question whether the fact found is sustained by the evidence. It is not necessary to take exceptions to the findings if the appellant attacks only the conclusions of law drawn from the facts found." It is not necessary to take exception to reasons given by the court for the ruling he makes.92 95 90 § 1359. Exceptions to instructions-Exception must be taken. -Appellant cannot avail himself of error in the court below in instructing the jury, or in modifying instructions asked, unless he excepts in the court below.93 A party cannot take his chances for a verdict on instructions given or refused without exceptions taken, and then, after verdict, except to the action of the court upon motion for new trial. Exception must be taken to both of two instructions where one is a logical deduction from the other, or to both parts where there are two propositions of law in one instruction.96 Exceptions must be taken at the time the decision is made, unless otherwise provided; but the bill containing the exceptions may be presented to the judge for settlement, either at the time the decision is made, or afterwards, under section 650 of the California Code of Civil Procedure. If an exception to the charge of the court to the jury is taken after the jury have withdrawn to consider their verdict, and before. the verdict is rendered, the question of allowing or disallowing the exception rests in the discretion of the court, and, whether Cal. 301. See Hicklin v. McClear, 18 Or. 216, 22 Pac. 1057. As to exceptions to findings, under the statute of Washington, on a trial by the court, without a jury, see Rice v. Stevens, 9 Wash. 298, 37 Pac. 440. As to how findings of fact may be waived, see Cal. Code Civ. Proc., § 634. 88 Lucas v. City of San Francisco, 28 Cal. 591. 89 Cowing v. Rogers, 34 Cal. 648. 90 People v. Albright, 14 Abb. Pr. 305. 91 Solomon v. Reese, 34 Cal. 28; Gay v. Moss, 34 Cal. 125; Tomlinson v. Mayor of New York, 23 How. Pr. 452; Rogers v. Beard, 20 How. Pr. 98. 92 Chessman v. Hale, 31 Mont. 577, 79 Pac. 254, 68 L. R. A. 410. 93 Lightner v. Menzel, 35 Cal. 452; Sharp v. Hoffman, 79 Cal. 404, 21 Pac. 846; Lewis v. Dodge, 3 Colo. App. 59, 31 Pac. 1022; Taylor v. Buckley, 3 Colo. App. 79, 33 Pac. 74. 94 Letter v. Putney, 7 Cal. 423. 95 Williamson v. North Pacific Lumber Co., 43 Or. 337, 73 Pac. 7. 96 French v. Guyot, 30 Colo. 222, 70 Pac. 683; City of Denver v. Stobridge, 19 Colo. App. 435, 75 Pac. 1076. 97 Cal. Code Civ. Proc., §§ 646, 647. allowed or disallowed, the supreme court will not interfere with the exercise of this discretion.98. In a California case,99 the court says: "Exceptions to the oral charge ought to point out the specific portions excepted to, and be made at the time, in order that the judge may have an opportunity before the jury retires to correct any error he may have inadvertently fallen into in the hurry and perplexities of the trial." 100 The real ground of objection is a matter of argument, and need not be set out in the exception.101 If a bill of exceptions is presented for settlement more than thirty days after the judgment is rendered, it must show an extension of time as an excuse for delay, or the bill cannot be considered by the appellate court, even if settled.102 A judge or judicial officer may settle and sign a bill of exceptions after as well as before he ceases to be such judge or judicial officer. If such judge or judicial officer dies, is removed from office, becomes disqualified, is absent from the state, or refuses to settle such bill of exceptions, or if no mode is provided by law therefor, it shall be settled in such manner as the supreme court may by its order or rules direct.103 § 1360. Must be specific.-Exceptions to the charge of a court should point out the specific portions of the charge excepted to.104 An exception to part of a charge, setting out the language complained of, is sufficient.105 A general exception to a charge to the jury will not be sustained, if any part of the charge is correct." A general exception to the whole charge 106 98 St. John v. Kidd, 26 Cal. 265. Whether section 646 of the California Code of Civil Procedure has changed the law in this respect, quære. Compare Mallett v. Swain, 56 Cal. 171. 99 Robinson v. Western Pacific R. R. Co., 48 Cal. 425. 100 See, also, Brown v. Kentfield, 50 Cal. 131; Jacobs v. Mitchell, 2 Colo. App. 456, 31 Pac. 235; Sukeforth v. Lord, 87 Cal. 399, 25 Pac. 497. 101 Denver & R. G. Ry. Co. v. Young, 30 Colo. 349, 70 Pac. 688. 102 Higgins v. Mahoney, 50 Cal. 444. 103 Cal. Code Civ. Proc., § 653. 104 Hicks v. Coleman, 25 Cal. 123, 85 Am. Dec. 103; Dale v. Purvis, 78 Cal. 113, 20 Pac. 296; Boyd v. Oddous, 97 Cal. 510, 32 Pac. 569; Coleman v. Gilmore, 49 Cal. 340. 105 Scott v. Astoria R. Co., 43 Or. 26, 99 Am. St. Rep. 710, 72 Pac. 594, 62 L. R. A. 543. 106 Lincoln v. Claflin, 7 Wall. 132, 19 L. Ed. 106; People v. Hart, 10 Utah, 204, 37 Pac. 330; People v. Berlin, 10 Utah, 39, 36 Pac. 199; Black v. City of Lewiston, 2 Idaho 276, 13 Pac. 80; Maling v. Crummy, 5 Wash. 222, 31 Pac. 600; Bowers V. Union Pacific R. R. Co., 4 Utah, 215, 7 Pac. 251; Kearney v. Snodgrass, 12 Or. 311, 7 Pac. 309; Schollay v. Moffitt-West Drug Co., 17 Colo. App. 126, 67 Pac. will not lay ground for a review in detail. Even when taken to "each and every ruling, severally, separately, and distinctly," it was held to amount to nothing.107 To an ambiguous charge, the exception must present the modification which will free it from ambiguity, or general objection will be untenable.108 The rule relative to exceptions of this kind is thus declared: 1. When any part of a charge given is sound, a general exception to the charge as a whole cannot be sustained; 2. To maintain an exception to a refusal to charge an entire series of propositions, each one of the propositions must be sound; 3. An exception to such portions of a charge as are variant from the requests made by the party, not pointing out the variance, cannot be sustained.109 Under the Washington statute,110 the grounds of objection to an instruction need not be stated in the exception thereto.111 When instructions are not as full on some particular points as desired, the party objecting should ask the court to make them more specific, before he can except on that ground.112 Where the giving or refusing of instructions is excepted to, all of the instructions given or refused should be contained in the record.11 182; Adams Express Co. v. Aldridge, 20 Colo. App. 74, 77 Pac. 6; York v. Nash, 42 Or. 321, 71 Pac. 59. 107 Magee v. Badger, 34 N. Y. 247, 90 Am. Dec. 691; Chamberlain v. Pratt, 33 N. Y. 47, 52; City of Pueblo v. Timbers, 31 Colo. 215, 72 Pac. 1059. 108 Springstead v. Lawson, 23 How. Pr. 302, 14 Abb. Pr. 328. 109 Murray v. Murray, 6 Or. 17; approved, Salomon v. Cress, 22 Or. 177; Glaser v. Glaser, 13 Okla. 389, 74 Pac. 944; Whipple v. Preece, 24 Utah, 364, 67 Pac. 1072. See, also, as to the proper form and manner of tak- 112 Brown v. Porter, 7 Wash. 327, 34 Pac. 1105; McQuillan v. City of Seattle, 13 Wash. 600, 43 Pac. 893. 113 Renshaw v. Switzer, 6 Mont. 464, 13 Pac. 127. |