Burns v. Chicago, Burlington & Quincy Railway Co.

Potter, Chiee Justice.

This cause was heard on the motion of defendant in error to dismiss, on the ground that no reviewable error is presented.

The cause was brought in the District Court by the plaintiff in error to recover damages for the alleged killing of *500 certain cattle of plaintiff by an engine or engines of the defendant. A jury trial was had resulting in a verdict for the defendant, whereupon judgment was rendered dismissing the cause and awarding defendant its costs.

The petition in error complains of that judgment and assigns as error:

(1) That the court erred in overruling- plaintiff's motion for new trial.

(2) That the court erred in dismissing plaintiff’s petition.

(3) That the verdict is contrary to law. There is no bill of exceptions in the record, nor is it claimed that a bill was prepared or allowed, although it appears by a journal entry that time was granted within which to reduce exceptions to writing, which time has expired. It is clear, therefore, that none of the errors assigned are presented in a manner to authorize their review in this court.

Rule 13, so often referred to in former decisions, provides that “nothing- which could have been properly assigned as a ground for a new trial in the court below will be considered in this court, unless it shall appear that the same was properly presented to the court below by a motion for a new trial, and that such motion was overruled and exception was at the time reserved to such ruling; all of which shall be embraced in the bill of exceptions.”' That the verdict is contrary to law is made by statute a ground for its vacation and a new trial. (Rev. Stat. 1899, Sec. 3746.) Hence, in the absence of a bill of exceptions showing that such question was properly presented to the court below by a motion to vacate or for a new trial, it cannot be considered in this court on error. It has been settled in this jurisdiction by a long line of decisions that a motion for new trial must be embraced in a bill of exceptions to become part of the record, and as there is no bill in this record, and, therefore, no motion for new trial which this court can consider, it follows that we cannot review the *501 action of the court below in overruling the motion for new trial. Unless the verdict is contrary to law as alleged it is not perceived that the judgment is erroneous or prejudicial, though perhaps it should have been entered in a slightly different form.

We cannot agree with the contention of counsel for plaintiff in error that the errors alleged appear upon the record proper. It appears that in the journal entry of the trial, verdict and judgment, it is recited that after the jury were impaneled and sworn, and a witness had been called by the plaintiff, the court sustained defendant’s objection to the introduction of any evidence by the plaintiff on the ground of the insufficiency of the allegations of the petition to constitute a cause of action, to which ruling the plaintiff excepted; and that thereupon the court directed the jury to return a verdict for the defendant; but no exception to that direction seems to have been entered. Counsel takes the position that the final result followed the ruling of the court sustaining the objection to the introduction of evidence, to which an exception was entered on the journal, and it is argued that as the case therefore presents the single question of law, whether the petition states a cause of action no new trial or motion for new trial was necessary, since the statute defines a new trial as a re-examination in the same court of an issue of fact, after a verdict by a jury, report of a referee or master, or a decision by the court. It is to be observed, however, in the first place, that though the court ruled on the trial that no evidence could be received for the plaintiff, on the ground above mentioned, the issue between the parties was nevertheless one of fact; the answer denied some of the material allegations of the petition, which, assuming that they would authorize recovery, would require proof on the part of the plaintiff. And should the judgment be reversed it is not perceived that this court could do otherwise than order the verdict vacated and remand the cause for a new trial upon the issues of fact. This court, certainly, could not presume the denied allegations of the pe *502 tition to be true and direct a judgment for the plaintiff,, without proof on his part.

Again, although the statute provides that, “when the decision objected to is entered on the record, and the grounds, of objection appear in the entry, the exception may be taken by the party causing- it to be noted at the end of the entry that he excepts” (Rev. Stat. 1899, Sec. 3742), that provision applies only where the decision would properly be entered of record, if no exception was taken to it. (Lockhart v. Brown, 31 O. St., 431.) Our code provisions, including the statute above quoted, were taken from the statutes of Ohio; and in the Ohio case above cited, it was said that such statute “is not intended as a substitute for a bill of exceptions, where the exception relates to matters occurring during the trial.” In that case the exception related to the charge of the court to the jury, and it was held that the charge excepted to was improperly made a part of the entry, and was not reviewable in the absence of a bill. We do not think that the rulings of the court during the progress of an ordinary trial on the admission and rejection of evidence are properly or usually entered upon the journal record of the court, and clearly they are not required to be so entered. It might therefore be seriously questioned whether the recital found in the entry in the case at bal-as to the objection to the introduction of evidence and the decision thereon was properly there, or, being there, constituted a proper record of the occurrence. And the same might be said respecting the alleged direction to the jury.

However, as to the assignments of error in this case, the matter is set at rest by Section 3743, Revised Statutes of 1899, which provides that when “the exception is to the opinion of the court on a motion to direct a non-suit, to arrest the testimony from the jury, or, for a new trial for misdirection by the court to the jury, or because the verdict, or if a jury was waived, the finding of the court, is against the law or the evidence, the party excepting must *503 reduce his exception to writing, and present it to the court * * * for allowance.”

The motion to dismiss will be granted, and the cause accordingly dismissed.

BbaRD, J., and Scott, J., concur.