Dunnington v. Frick Co.

Hughes, J. i. Effect of exception in structions" (after stating the facts.) Upon the issue submitted to the court, the court made special findings, and then held “that the transaction did not constitute a doing of business in the State within the meaning of the act of 1887, and on this issue finds in favor of the plaintiff.” No exceptions were saved to the conclusions of law by the court upon the findings of facts, The bill of exceptions fails to show any proper ex- . . ceptions saved to any .of the instructions asked by the plaintiff. The exceptions were in-gross, which has repeatedly been held not sufficient in this court, where' any of the instructions are good, and they were not all bad in this case. If the appellant wished to have this court review the conclusions of law by the circuit court, he should have saved proper exceptions thereto. This he failed to do, and therefore this court will not consider the same. There were no exceptions at all to the court’s ruling upon the questions of law in the case. In Phelps v. Mayer, 15 Howard, 160, Mr. Chief Justice Taney, delivering the opinion of the court, said : “It has been repeatedly decided by this court that it must appear by the transcript, not only that the instructions were given or refused at the trial, but also that the party who complains of them excepted to them while the jury were at the bar. * * * Nor is this a mere formal or technical provision. It was introduced and is adhered to for purposes of justice. For if it is brought to the attention of the court that one of the parties excepts to his opinion, he has an opportunity of reconsidering or explaining it more fully to the jury. And if the exception is to evidence, the opposite party might be able to remove it by further testimony, if apprised of it in time.” “After an elaborate opinion, referring to many cases in other American jurisdictions,” says Judge Thompson, in his work on “Trials,” “the Supreme Court of Appeals of West Virginia have reached the following conclusion, stated by them in italics : 'If errors, or supposed errors, of any kind are committed by a court in its ruling during the trial of a case by a jury, the appellate court cannot review these rulings of the court unless two conditions concur: First, these rulings must have been objected to when made, and a bill of exceptions taken, or the point then saved, and the bill of exceptions taken during the term; and, secondly, a new trial must also have been asked and overruled, and objected to, and this noted on the record.' With us there must be a motion for a new trial presented to the court below, within the time required by the statute, in which motion the objections to the rulings are preserved ; otherwise they are treated as abandoned.” In Hyde v. Booraem, 16 Peters (U. S.), 176 it is said: “If either party in the court below is dissatisfied with the ruling of the judge in a matter of law, that ruling should be brought before this court by an appropriate exception, in the nature of a bill of exceptions, and should not be mixed up with its supposed conclusions in matters of fact.” As there was no exception to the court’s conclusions of law, upon its finding of facts, they cannot be reviewed here. % Conclusiveness of court’s finding's. It cannot be said, without error, that there was no evidence to support the finding of facts by the court sitting as a jury ; and its findings will not be disturbed any more than the verdict of a jury would be under the same circumstances. Nathan v. Sloan, 34 Ark. 526; Minkwitz v. Steen, 36 Ark. 260; Robson v. Hough, 56 Ark. 623; Jones v. Glidewell, 53 Ark. 161. There was no error in excluding the evidence, of the exclusion of which the appellant complains, as the appellant was permitted himself to testify as to the rate of toll and daily earnings of the gin. 3. When in struction not prejudicial. Upon the measure of damages, the 3d instruction asked for by the appellant and given by the court is the same, in effect, precisely as the sixth and seventh instructions given at the instance of the appellee. The appellant cannot therefore be heard to complain that the sixth and seventh were prejudicial to him, even if they were erroneous. Judgment affirmed.