Stroberg v. Merrill

Mr. Justice Eakin delivered the opinion of the court. 1. There are four assignments of error: (1) That the judgment is contrary to the evidence; (2) that the judgment is contrary to law; (3) that the findings of fact and conclusions of law are not supported by the evidence; (4) that the court erred in regarding certain evidence offered by defendant and objected to by the plaintiff. Defendant contends that the record presents no question of error, in that the assignments of error are not specific enough to raise any question in this court. It has been uniformly held by this court that the assignments must state the ground of error with reasonable certainty: Salmon v. Olds & King, 9 Or. 488; N. P. Terminal Co. v. Lowenberg, 11 Or. 286 (3 Pac. 683); Herbert v. Dufur, 23 Or. 462 (32 Pac. 302); Morrison v. McAtee, 23 Or. 530 (32 Pac. 400). And under this rule assignments 1, 2 and 4 are too indefinite and general to notify the defendant or the court of the errors upon which the plaintiff intends to rely here. 2,3. The third assignment involves no objection made nor exception taken in the trial court. Mr. Justice Moore in Taffe v. Smyth, 62 Or. 227 (125 Pac. [411] 308), says that findings of fact will not he disturbed on appeal unless it satisfactorily appears that application was made to the trial court for further or different findings, and the request therefor denied. The facts showing the error, exception to the finding, or a request for a special finding and a refusal thereof are necessary to raise the question on appeal: Hicklin v. McClear, 18 Or. 126 (22 Pac. 1057); Umatilla Irr. Co. v. Barnhart, 22 Or. 389 (30 Pac. 37); McClung v. McPherson, 47 Or. 73 (81 Pac. 567, 82 Pac. 13). From these authorities it is established that the findings of fact must be regarded as the verdict of a jury, and are conclusive upon the appeal, unless they are wholly unsupported by the evidence; and, if that fact is made to appear by the bill of exceptions, the court may disregard them: Good v. Smith, 44 Or. 578 (76 Pac. 354). But to bring such questions here, there must have been an exception taken thereto in the Circuit Court, and assignments must be specific as to the alleged error. The waiver of a jury amounts to a request for a special verdict, which necessitates a finding upon all the material issues involved. The case is not to be tried anew in this court, but only upon specific errors committed by the trial court upon matters brought to its attention by objection and exception: Moody v. Richards, 29 Or. 282 (45 Pac. 777). And an exception to the general result of such findings would call for a trial anew. The judgment is affirmed. • Affirmed. Mr. Chief Justice McBride, Mr. Justice Bean and Mr. Justice McNary concur.