Obrázky stránek


7. Before reversing the judginent of the Court below, on the ground that a cer. tain paper was admitted in evidence, which was irrelevant to the issue joined, this Court will require the irrelevaney clearly to appear. Some facts should be adduced showing that the admission of the paper bad an undue influence upon the verdict of the jury. McGarrity v. Byington, 12 Cal. 426.

8. When a notice of motion to dismiss a complaint on specified grounds is given, to obtain a review of the order made on the motion, the record must disclose the papers read, or the evidence offered in their support. Freeborn g Goodwin v. Glazer, 10 Cal. 337.

9. A stipulation inserted in the transcript and not embodied in a statement or bill of exceptions, forms no part of the record which this Court can notice. Ritter v. Mason, Il Cal. 214.

10. A reference, in a statement on appeal, to the evidence as taken by the Clerk with the consent of parties, is sufficient-the evidence being in the transcript. The statement need not contain the evidence. Darst v. Rush, 14 Cal. 81.

11. Where the affidavits used in support of a motion for a new trial are not set forth in the record on appeal, the party moving is deprived of all ground of error based on the affidavits; but the omission does not affect his right to raise the ques. tion as to errors apparent upon the face of the record. Branger g Driard v. C'heralier, 9 Cal. 353.

12. Atidavits in support of a motion in the Court below will not be considered by the Supreme Court unless they are incorporated in the statement or bill of exceptions. The People v. Honshell, 10 Cal. 83.

13. Wliere the minutes of the Court entered of record show that plaintiff offered in evidence the patent, and certain mesne conveyances to himself, but they do not appear in the statement for new trial, and the papers are not set out in the record, and the Couri charges as above, this Court will not hold that the charge was an abstraction, or that it mistook the facts, when the motion for new trial tails to set forth the grounds relied on, and the statement does not show that the testimony therein was all the testimony offered. JcGarvey v. Little, 15 Cal. 27.

14. Where the transcript consists of the pleadings, several attidavits, and memoranda of exceptions taken in the progress of a cause, and signed by the Judge, stating that certain motions were made on the one side upon affidavits, and resisted on the other, together with the rulings of the Court and the exceptions of counsel, but containing nothing which identifies the affidavits in the transcript as those upon which the motions were made, or which enables this Court to determine the correctness of the rulings below: Held, that the orders cannot be brought up for review on appeal from a final judgment in this way. Stone v. Stone, 17 Cal. 513.

15. A regular statement must, in such case, be prepared according to the statute, embracing so much of the affidavits or evidence, upon which the rulings were bad, as to explain and point the exceptions taken; and the memoranda ot' exceptions signed by the Judge in the progress of the cause serve only to secure accuracy in the stateincnt. Id.

16. Wliere documents and depositions are read or referred to on the argument of a motion for a new trial in the Court below, and are are not embodied in the statement, it will be sufficient for the Judge to add, upon rendering his decision, a certificate of the matters thus read or referred to. This certificate will be sutħcient identitication of the documents and depositions used; and a copy of them, together with the statement and judgment roll, will constitute the only record necessary in the Supreme Court. Louchs v. Edmondson, 18 Cal. 203.

17. The Supreme Court cannot receive evidence otherwise than through the statement or the record. Visher v. Webster, 13 Cal. 58.

18. A statement on appeal not agreed to by the parties or their counsel, or setiled by the Judge who tried the cause, forms no part of the record. VícIntyre v. Willis, 20 Cal.

19. It is not necessary to embody matter of record in a bill of exceptions. Johnson v. Sepulbeda, 5 Cal. 149.

20. It follows that the finding need not be embodied in a statement or bill of exceptions. Reynolds v. Harris, 8 Cal. 617.

21. Certificate of the Judge. See ý 341.

22. Want of statement, bill of exceptions, assignment of errors, and where they are insufficient, effect of. – Since the

[ocr errors]
[ocr errors]

first of July, 1851, if no case or bill of exceptions be annexed to the records, the Court can only look to the judgment roll. Wilson v. Middleton, 2 Cal. 54.

23. If the record does not explicitly state the particular ground of granting a nonsuit, yet if it be a necessary inference from what is disclosed, it is sufficient for the action of this Court, and will be reversed if erroneous. Morgan v. Thrift, 2 Cal. 562.

24. To disturb a judgment of a Court of original jurisdiction, it is not sufficient that error may have intervened: but it must be affirmatively shown by the record. White v. Wentworth, 3 Cal. 426.

25. The naked direction of a Court, unaccompanied with any statement of facts, cannot support allegations of error, they may be in reference to the facts merely abstract, or inapt to mislead the jury. Id.

26. The notices and affidavits filed on an application to retax costs, were not embodied in a bill of exceptions or statement: Held, that the judgment must be affirmeid, upon the presumption that the Court below decided properly upon all the evidence before it. Gates v. Buckingham, 4 Cal. 286.

27. The fact of the appellants having objected, in the Court below, to the introduction of evidence of location of a school land warrant, on the ground that it was not recorded in the proper office, is not sufficient to justify the appellate Court in presuming that such was the case, when the statement on appeal contains no evidence of the fact. Nims v. Johnson, 7 Cal. 110.

28. Where the evidence is not set out in a statement on appeal, this Court will presume that the Court below had good reason for granting a new trial. Dickinson v. lan Horn, 9 Cal. 207.

29. The naked directions of a Court to the jury, unaccompanied with a statement of facts, will not satisfy this Court of substantial error, although some of the directions may not be in consonance with the rules of law. Nelson v. Lemmon, 10 (al. 119.

30. Errors assigned upon instructions given by the Court helow will not be considered by this Court, unless there is an authenticated statement of the evidence to show the pertincney or relevancy of such instructions. Nelson v. Mitchell, 10 Cal. 92.

31. Where there is no statement on appeal, the Supreme Court is confined in its examination of the case to the judgment roll; and when that is regular, the judgment below will be affirmed. Karth v. Orth, 10 Cai. 192.

32. Wliere there are no assignments of error by the appellant, the judgment of the Court below will be atfirmed. People v. Golbing, 10 Cal. 312.

33. The Supreme Court will not notice errors assigned unless there is a proper statement on appeal. Sherman v. Rollberg, 11 Cal. 38.

34. Where there is no assignment of errors, or statement of the points and authorities on which the appeilant relies, the appeal will be dismissed. People v. Comedo, 11 Cal. 70; Id. 129.

35. Instructions to the jury, which are not embodied in the statement on appeal or bill of exceptions, and are neither certified to by the Julge trying the cause or signed by him, cannot be the subject of consideration by the Court. Paige v. O Veal, 12 Cal. 483.

36. Where there is no properly authorized statement on appeal : Held, that the special verdict of the jury is conclusive of the facts found. Neuberg v. Henson, 12 Cal. 280.

37. Where there is no bill of exceptions and no statement, the rulings of the Court upon questions of law during the trial cannot be sought from the testimony as taken down by the Clerk, neither under the Act of 1850 nor 1851. Castro v. Armesti, 14 Cal. 38.

38. Anil a certificate of a Judge who tried the cause, made eight years after the trial, that he believed the exceptions taken were correctly noted in the Clerk's minutes of the testimony, cannot supply the place of a trial of exceptions. Id.

39. Where the instruction may be correct under any siate of facts, then the Supreme Court presumes in favor of the judgment below, and will not reverse it when there is no statement of facts or bill of exceptions_because the appellant must show affirmative error. People v. Livison, 16 Cal. 98.

40. An order by the Court below, granting a new trial, will not be disturbed where the statement on appeal consists of a mere outline of the evidence, without any rulings and instructions of the Court—the statement not purporting to give all


the testimony, and that given not being so clearly in favor of the verdict as to justify any interference with the order. Loucks v. Edmondson, 18 Cal. 203.

41. Time within which statement must be prepared.-Statements and exceptions should be speedily settled. Hutchinson v. Bours, 13 Cal. 50.

42. Where a statement, to be used on appeal, is not filed within twenty days after judgment, it cannot be regarded, and the case will be determined on the judgment roll alone. Macomber v. Chamberlain, 8 Cal. 322 ; Tafferty v. Brownlie, 11 Id. 132; Hrehn v. Strosburg, 12 Id. 412; JIcIntyre v. Willis, January T. 1862.

43. Moving for a new trial does not of itself operate to extend the time for filing a statement on appeal from the judgment. And where a judgment was rendered July 27th, 1859, and motion for new trial overruled October 22d, 1859, a statement on appeal served November 10th, 1859, was not in time. Mahoney v. Caperton, 15 Cal. 313.

44. Grounds of appeal.—By an assignment of errors, as the term is used in this Court, is meant a specification of the errors upon which the appellant will rely with such fullness as to give aid to the Court in the examination of the transcript. Squires v. Foorman, 10 Cal. 298.

45. Error will not be presumed, but must be affirmatively shown, and all intendments are in favor of the regularity of the Court below. Ford v. Holton, 5 Cal.

46. The Supreme Court will not look through a voluminous record for errors of the Court below, where none are assigned by counsel, and where there is no abstract of facts on file. Mokelumne Hill Company v. Woodbury, 10 Cal. 187.

47. Where there is no assignment of errors, the appeal will be dismissed. Sayre v. Smith, 11 Cal. 129.

48. Where no grounds or reasons are stated on motions for nonsuit and new trial, and no exceptions taken to instructions of the Court, errors cannot be assigned. Holverstot v. Bugby, 13 Cal. 43.

49. Where the error of a decree is apparent by reference to the bill and decree, the party aggrieved may assign the error, though no demurrer be interposed. Gregory v. Ford, 14 Cal. 138.

50. The statement on appeal failing to satisfy the grounds of appeal, forms no part of the record into which the Supreme Court will look, and the case stands on the judgment roll, upon the authority of Barrett v. Tewksbury. Reynolds v. Lawrence, 15 Cal. 359.

51. Where a statement does not contain any specification of the grounds of appeal, it will be regarded as a mere transcript of testimony, and will not be noticed. Barret v. Tewksbury, 15 Cal. 354.

52. There is no distinction as to the manner in which a statement is to be prepared between a case at law and a case in equity. The grounds of appeal must in both cases be stated; and in both cases much, if not the greater portion of the evidence, will be immaierial for the determination of these grounds in the Supreme Court. ld.

53. The statement containing no specification of the grounds of appeal, and the appellant not availing himself of the privilege accorded in Barrett v. Teuksbury, (ante) of annexing to his statement those grounds nunc pro tunc, this Court will not look into the testimony to ascertain errors. The case must stand on the judgment roll. Dobbins v. Dollarhide, 15 Cal. 374.

54. Form of assigning errors. May be stated as follows: that the respondents are not parties in interest and entitled to bring the suit, having previously divested themselves of their right of property in question; that the suit is barred by a former adjudication between the same parties upon the same subject matter; that the property in question was the separate property of the wife; that the cause of action is barred by the Statute of Limitations. Burrett v. Tewksbury, 15 Cal. 359.

55. Errors, when may be presented for the first time in the Supreme Court.--If the complaint does not show a good cause of action, the judgment will be reversed, though no objection be taken below. Russell v. Ford, 2 Cal. 86.

56. An objection to the complaint that defeats only plaintiff's present right to


recover must be made in the Court of original jurisdiction during the term at which the judgment is rendered. But when the defects are of such a serious character as to show that plaintiff could not at any time obtain anv judgment upon the cause of action alleged, then the objection may be made for the first time in the Appellate Court. Hentsch v. Porter, 10 Cal. 555.

57. Where a bill in equity shows on its face that plaintiff is not entitled to relief, the defect may be taken advantage of in the Appellate Court, even though no demurrer be filed. White v. Pratt, 13 Cal. 521.

58. Where objections to evidence, though not made in the Court below, could not be under any circumstances there obviated, such objection may be taken for the first time in the Supreme Court; as, for example, objections to the substantial cause of action, not to its technical form of statement, and to the jurisdiction of the Court below, may be presented to the Supreme Court for the first time, or may be considered by the Court, whether its attention be directed to them or not. Moit v. Smith, 16 Cal. 533.

59. An appeal from an order refusing a new trial brings up the whole record, and on such appeal error may be assigned on the judgment roll, even though there be no appeal from the final judgment. Hanscom v. Tower, 17 Cal. 518.

60. Objections to the introduction of evidence confined in the Appellate Court to the grounds taken below. Natoma Water 8. dlining Co. v. Clarkin, 14 Cal. 544; Baker v. Joseph, 16 Id. 173.

61. Errors relied on, must be raised in the Court below.-Errors cannot be relied on in an Appellate Court which are not taken advantage of and raised in the Court below. Morian v. Hugg, 5 Cal. 409.

62. The Supreme Court will consider only errors of law, to which exceptions have been regularly taken. McCartney v. Fitz Henry, 16 Cal. 184; Collier v. Corbett, 15 Id. 183.

63. Decisions illustrating the foregoing rules.-An objection to the misjoinder of the defendant. Sands v. Pfeitjir, 10 Cal. 258.

64. That certain parties could not intervene.” Mckenty v. Gladwin, Hugg & Co., 10 Cal. 227.

65. That a supplemental complaint should have been filed. Van Maren v. Johnson, 15 Cal. 308.

66. Objection to the form of a complaint or answer. Sutter v. Cor, 6 Cal. 415; Duff v. Fisher, 15 Id. 375.

67. That one of two counts in a complaint in an equitable action should not be tried by a jury. Baker v. Joseph, 16 Cal. 173.

68. An objection to an order overruling a motion to set aside the judgment and quash the execution not excepted to. Smith v. Curtis, 7 Cal. 584.

69. An objection to the form of a verdict. Douglass v. Kraft, 9 Cal. 584. 70. An objection to evidence. Pulter v. Carney, 8 Cal. 574.

71. An objection that an account presented to the Supervisors of a county was not, "authenticated,” as required by the statute (Acts 1857, 167).

Randall Yuba County, 14 Cal. 219.

72. Grounds for a nonsuit which were not taken in the Court below. Baker v. Joseph, 16 Cal. 173.

73. An objection that the finding is qualified by the words “as to plaintiff, Parke," and that the facts showing this relation to him ought to have been found, should have been taken below. Parke v. Hinds, 14 Cal. 415.

74. The question of the Statute of Limitations cannot be raised on appeal, unless presented in some form on the trial below, even though it be pleaded. McDonald f Blackburn v. Brar River & Auburn Water f Mining Co., 13 Cal. 220.

75. That interest was improperly allowed. Whitney v. Clark, 17 Cal. 407. 76. A mistake in the taxation of costs. Guy v. Franklin, 5 Cal. 416.

77. That a stipulation filed in the Court below was disregarded. Clark v. For. shay, 3 Cal. 290.

78. Error in a decree which could have been corrected in the Court below. Phelan v. Raiz, 15 Cal. 90.

79. Ohjections to the verification of a complaint that it was not authenticated by the seal of the Notary; that there was no venue to the affidavit; that there was no evidence that the officer was a Notary Public, etc., should be taken in the Court


[ocr errors]

below, and cannot be raised for the first time in this Court. Kuhland v. Sedgwick, 17 Cal. 123.

80. When no statement is required on appeal.-It is only where an appealable order is made upon affidavits, and an appeal is taken directly from such order, that a statement is not required. But even then there must be some certificate of the Judge or Clerk specifying the affidavits used. Stone v. Stone, 17 Cal. 513.

81. On appeal from an order granting or refusing a new trial, there is no necessity for preparing a statement on appeal—the statement on motion for new trial being sufficient. Loucks v. Edmondson, 18 Cal. 203.

82. Amendment of statement.-A refusal to allow an amendment is presumed to be right, unless the character of the proposed amendment is shown in the record. Jessup v. King, 4 Cal. 334.

83. While the term lasts, the Court has power to amend the record. After the terin has passed, the record cannot be amended, unless there is something in the record to amend by. The settled statement until certified is not record. Branger 8. Driard v. Chevalier, 9 Cal. 351.

81. Where there are amendments to a proposed statement on appeal, the draft proposed and the amendments allowed should be incorporated into one document, as in their separate form they cannot be regarded as any part of the record. People v. Edwards, 9 Cal. 286; Skillman v. Riley, 10 Id. 300.

85. Where amendments are made to a statement on appeal, a fair copy of the staternent so amended should be made. Otherwise, the Supreme Court will not look into it. Marlow v. Marsh, 9 Cal. 259.

86. The Court refused to remand the cause for the purpose of amending the bill; but the Court declined to decide that a new bill with proper amendments could not be filed. Mulford v. Cohn, 18 Cal. 42.

§ 339. Omission to make statement or amendment according to preceding section shall be a waiver thereof.

[1855.] If the party shall omit to make a statement within the time above limited, he shall be deemed to have waived his right thereto; and when a statement is made, and the parties shall omit, within the several times above limited, the one party to propose amendments, the other to notify an appearance before the Judge, they shall respectively be deemed, the former to have agreed to the statement as proposed, and the latter to have agreed to the amendments as proposed, and no settlement of the statement or certificate thereto by the Judge shall be required.

§ 340. Time for preparing statement or amendment may be enlarged.

The several periods of time above limited may be enlarged, upon good cause shown, by the Judge before whom the cause was tried.

1. If the appellant allow the twenty days to expire after taking the appeal without framing a case, he waives his right to have a case stated; and a subsequent order of the Court, made without notice to the respondent, allowing further time to make up the statement, is a nullity. Leech v. Alden, 2 Cal. 95.

2. The Court may extend the time for filing a statement on appeal; but moring for a new trial will not extend the time. Mahoney v. Caperton, 15 Cal. 313.


« PředchozíPokračovat »