Altman v. Wheeler

Cooley Ch. J. This was an action of trover, which, in the court below, was sent to a referee, before whom the parties appeared and put in their evidence, the plaintiff taking several exceptions to the admission of evidence which were embodied in a bill of exceptions settled in due form. The referee made his report to the Circuit Court, sp.fi-.irig forth at length his conclusions of fact, and his deductions of law that the plaintiff on such facts was not entitled to judgment. The plaintiff filed exceptions to this report, and upon these exceptions and the bill of exceptions, moved the Court to set aside the report. The Court denied the motion, and rendered final judgment in favor of the defendant. The plaintiff thereupon brings error and assigns for error, first, that the Circuit Court overruled the motion of the counsel for the plaintiff to set aside the report of the ref [242] eree and confirmed such report, and second, that the judgment was given for the defendants against the plaintiff, when, by the law of the land, it ought to have been given for the plaintiff against the defendants. _ Buie twelve of this court requires all assignments of error to be special, and it is not claimed by the plaintiff that the second assignment of errors complies with this rule, or can be of any avail to Mm in this case. The first assignment he claims is sufficient, because it is based upon the only order of the court below of which he complains. The rule requiring special assignments of error has for its object the apprising the opposite party of the grounds of complaint in the proceedings of the court below, that he may prepare to meet them in argument, or to obviate them if they relate to errors or imperfections which can be cured before argument by amendment or otherwise. This purpose is not accomplished by any assignment so general in form as to cover the whole record, and relate to numerous objections which may appear to have been taken in the course of the proceedings, without pointing out any one or more of them on which the party will rely. Such an assignment is calculated to leave the opposite party wholly in the dark as to the point he will have to meet, and he may find on the argument that his conjectures on the subject have been entirely at fault. The Court, too, will be compelled to wade through the record in search of objections which may be supposed to be obscurely indicated in some portion of it, but to which their attention is not distinctly called by the allegations of error. And there is always more or less danger of mistaking the real points in the case; while the record will never, with sufficient certainty, indicate them, if it should afterwards become important to inquire what they were. In the present case, it was competent for the party to assign error upon any one of the exceptions taken before the referee; and if he had relied on any one of them, it [243] was as much his duty to do so as if the bill of exceptions had been one-settled by the Circuit Judge in a trial before him. The bill of exceptions, under the statute, performs the same offices for the purposes of a writ of error as a bill settled by the Circuit Judge, when the case is heard in open court. And all the reasons which require a special assignment of error 'in the one case, are applicable with the same force in the other. The plaintiff might also have assigned error upon the overruling of each of his exceptions to the conclusions of the referee, provided they were aimed at such conclusions as were the subject of exception. He has chosen, however, to assign only a general error to the action of the court in overruling his motion to set aside the report; a motion which covered the whole case. So that the first assignment of error has no greater definiteness in pointing out the error to be considered than has the second which is conceded to be too general. The defendant could not know whether the plaintiff would rely in this court upon some ruling of the referee upon a question put to a witness while on the stand before him, or upon some exception to the report of the referee, which the court concluded was not well taken. The assignment of errors is so framed as to blend together the whole action of the referee and the Circuit Judge, and was evidently designed to give to the plaintiff the benefit of any fault that could be discovered in any portion of the proceedings; and it would be difficult to imagine a case more distinctly within the mischief designed to be remedied by our twelfth rule. We are therefore of opinion that we cannot consider the errors insisted upon in the argument, and that the judgment must be affirmed, with costs. Ohristiancy and Graves JJ. concurred.