Gardner v. Hayne

Mr. Chief Justice Walker delivered the opinion of the Court: It is urged as a ground of reversal, that the court erred in overruling the demurrer to plaintiff’s declaration. In the view we take of the case, we deem it unnecessary to consider that question. Defendant, after the demurrer was overruled, pleaded in bar to the action. This was a waiver to all objections raised on the demurrer, unless the declaration was so defective that a judgment could not be rendered on it, and a motion in arrest was made. If the party was dissatisfied with the decision on the demurrer, he should have abided by it, and presented the question to be reviewed in this court. It is insisted, that the court erred in admitting the deposition of Graff, against appellant’s objection. The record does disclose the fact, that he objected, but it fails to appear that he excepted to the decision of the court in admitting it. A decision of this character will not be reviewed, unless the party excepts to it when made. The exception must appear in the bill of exceptions, or it will be presumed that it was waived. We cannot know but appellant, although he objected to the evidence when offered, was willing when the objection was disallowed to permit it to be read. If he was still unwilling, he should have excepted to the decision admitting it. The transcript in this case is so confused, and badly arranged, that we find it difficult to ascertain what it does properly contain, but we have read it carefully, and fail to find that the bill of exceptions contains a statement that it presents all of the evidence heard in the court below. It is the settled and uniform practice of this court, not to disturb a verdict, or the finding of the court below, on a motion for a new trial, because such finding is not sustained by the evidence, unless it appears that all of the testimony, upon which it is based, is contained in the record. In the absence of such a statement we will indulge the presumption, that there was other and sufficient evidence to warrant the finding. The party alleging error must show it. And, when he alleges that the finding is not sustained by the evidence, he must establish the averment by bringing all of the evidence in the case before this court, that it can be seen that it is insufficient. The judgment of the court below must be affirmed. Judgment affirmed.