Morgan v. Boyd

SutlifR, C. J. It is difficult to perceive how it can be alleged that in the record before us (the case of Morgan v. Boyd), there appears to be error in another record, viz., Morgan v. William Sample, the judge. It is true, the record in the case before us, discloses the fact that the plaintiff, during the hearing of this case in the district court, had moved that court for a writ of mandamus to be allowed against one of its mem bers, Judge Sample, to sign a bill of exceptions, which, it is said, had been presented to him in the court of common pleas, at the term of the trial of the original cause in that court; and which the judge, at a subsequent term of the same court, refused to allow and sign. It might be here sufficient to say, in reply to the averment made in this record that the district court erred in not allowing and ordering a mandamus, that it will only be proper for this court to determine whether or not such error appears, when the record of that application is presented to us, and when application is made in this court for leave to file a petition in error, or to determine the question of error, in that case. A proceeding-in mandamus is an original and independent statutory proceeding, and governed by cléarly prescribed provisions of the statute. The application tor the writ must be by written motion, showing sufficient cause, and.verified by affidavit; and, if required by the court, notice thereof must be given to the opposite party. If, in a proper case for the allowance, it be made to appear, from the record, that the district court refused the application, it would, doubtless, be competent for this court, upon petition in error, to reverse such order, so overruling the motion and refusing the application. But in this case, we have not before us the motion, application and refusal, so made in the district court; nor, in fact [280] has there been any application to this court to file a petition in error in that case. The second error assigned must, therefore, be regarded, as foreign to this case. But the same can not be said of the first error assigned. The allegation that the district court erred in affirming instead of reversing the judgment of the court of common pleas, is an assignment of error which makes it necessary for us to examine the several causes for the reversal of the judgment of the common pleas, assigned in the district court, and the correctness of the judgment of that court thereon. The first error assigned in the district court is, that the verdict of the jury did not determine the issues between the parties. The verdict in the case is in these words (after giving the names of the jury), “who being duly sworn, well and truly to try the issue joined between the parties in this case, upon their oaths do find a verdict in favor of the plaintiff, and assess his damages, by reason of the premises, at ten dollars.” By the code (sec. 275), it is provided, that “ the verdict of a jury is either general or special. A general verdict is that by which they pronounce generally upon all or any of the issues, either in favor of the plaintiff or defendant. A special verdict is that by which the jury finds the facts only,” etc. This verdict of the jury is, therefore, good as a general verdict; and they were not instructed to find a special verdict. The 2d, 8d and 4th errors assigned in the district court, do not appear from the record; and could only be presented by a bill of exceptions. It is assigned fifthly, that the court erred in neglecting and refusing to allow and sign a bill of exceptions in the case. The correctness of this allegation can only be made to appear by showing that the refusal of the court was in disregard of the provisions of the statute, giving the right to a bill of exceptions. In chap. 87, art. 5, of the code, it is provided that the [281] party objecting to the decision of the court, upon a matter of law, at the trial, must except at the time the decision is made, and that time may be given to reduce the exception to writing, hut not beyond the term; that the party excepting must reduce the exception to writing, and present it to the court for allowance. If the writing is true, it is made the duty of the court to sign it; if the writing is not true, it provides that the court shall correct it, or suggest the correction to be made, and that it shall then be signed as aforesaid. It is further provided that “ no exception shall be regarded unless it is material, and prejudicial to the substantial rights of the party excepting.” Now, in view of these statutory regulations upon the subject, let us turn to the exceptions to the action of the court of common pleas, in relation to the bill of exceptions, and see if the same are well taken. The record before us, fails to inform us of the alleged errors of the court for which the bill of exceptions was demanded. There is no copy of the bill of exceptions presented to that court set forth in the record; and we are, therefore, unable to say that the same were material, and entitled to be regarded. Nor is it anywhere averred that the party so presenting the bill of exceptions during the term, excepted to the decisions complained of as illegal, at the time the decisions were respectively made. It is shown that the plaintiff in error presented the bill of exceptions to the court during the term of the trial- at which the alleged errors were committed by the court; but the record shows that the court, instead of signing it then, as required by the statute, ordered both the motion for a new trial and the application for the allowance of a bill of exceptions .to be continued until the next term of the court. Now, it would not be sufficient for us to find that the court erred in refusing to sign the bill of exceptions at the trial term, and continued the same; but, in order to entitle the plaintiff in error to any benefit by- his petition in error, in that regard, it must also appear that he excepted to such decision of the court at the time the decision not to then sign, but to continue the application and motion for new trial, was so [282] made. But the record fails to show any exception on the part of plaintiff in error to the decision now complained of, nor does the record show that counsel did not acquiesce, and consent to such action of the court. It does not, therefore, appear upon the record that the plaintiff in error excepted, at the time it was made, to any illegal decision of xhe court during the trial term. At the next term — the March term — of the court to which the motion for a new trial was continued, it appears that the motion was overruled, and the court declined to sign the bill of exceptions so presented at the previous term ; and it is said that, in overruling the motion and in refusing to sign the bill of exceptions, the court erred. There is nothing in the record to show that the court erred in overruling the motion for a new trial. Nor does it appear that the court erred in refusing to sign the bill of exceptions taken and presented at the previous term of the court. We are, of course, unable to say whether or not the court erred in overruling the motion for a new trial. If there existed in the case either of the eight causes for which the legislature (code, chap. 87, art. 6) has made it the duty of the court to allow a new trial, and such cause were proved on hearing of the motion, the court erred in overruling the motion. But error is never to be presumed, and no exceptions seem to have been taken, nor any bill of exceptions presented in regard to the action of the court in overruling the motion for a new trial. It is, therefore, impossible for us to perceive any error in the record .in regard to overruling the motion for a new trial. It is, perhaps, here unnecessary to say, in a case where the motion for a new trial has been continued to a subsequent term, to what extent the bill of exceptions taken on its hearing may embrace matters occurring on the trial at a previous term. Article 297 of the code allows the party a new trial for either of the eight causes therein mentioned. And ■upon proof of the alleged cause, on hearing of the motion, •whether it be “ misconduct of the jury or prevailing party,” that the “ verdict, report or decision is not sustained by suf [283] fieient evidence,” or “ error of law occurring at the trial, and excepted to by tbe party ” asking a new trial, if the cause be proved on hearing of the motion, the party is as well entitled to the new trial, as he would be on proof of either of the other causes for which a new trial is required to be granted. And if the court, in disregard of the proof of the cause for a new trial alleged in the motion, overrule, the motion, by the provisions of sec. 294 of the code, the party is_ entitled to his bill of exceptions, to show that the decision overruling such motion is contrary to law or opposed to the evidence. But it is sufficient to say that the plaintiff in error, not having taken exceptions or presented any bill of exceptions to the overruling of his motion, no error appears upon the record in that regard. The judgment of the district court in affirming the judgment of the court of common pleas, must, therefore, be affirmed by this court. Pece, G-holsoN, Brinkebhoee and Scott, JJ.', concurred.