Hoppie v. Best

Stone, J. The judgment of the court below was rendered upon a review of the evidence and proceedings had before a justice of the peace brought up to the district court bj certiorari. No exception was taken to the judgment or to any of the proceedings in the court below. It has been settled by repeated decisions of this court, that assignments of error, and not based upon exceptions duly taken and reserved, will not be considered here, unless such alleged error is apparent by the record proper; and not necessary to be preserved by bill. • Patton v. Coen & Ten Broeck, etc., 3 Col. 267 ; Wasson v. Dyer, id. 398. The error here complained of, however, goes to the form of the judgment of the court in dismissing the case as to one of two defendants, and affirming the judgment of the justice as to the other, and needs no exception. This question was directly passed upon by this court in the case of Miller v. Sparks, decided at the December term, 1878 ( ante, p. 303), where it was held that the power of the court to render such a judgment is full and complete under the concluding clause of the 7th section of the act concerning certiorari to justices’ and probate courts, providing that the district court “may render such judgment as the facts and the law warrant.” That the judgment below was rendered upon a consideration of the facts as well as the law is evident from the record, and upon the authority of the decision in the case of Miller v. Sparks, supra, the judgment of the court below in this case will be Affirmed.