Otis v. Spencer — 6 Abb. Pr. 127

Majority

p. 127

OTIS a. SPENCER.

Court of Appeals;

March Term, 1858.

Headnote

Requisites of Case oh Appeal.

Errors at the trial cannot he reviewed except upon a sufficient case or exceptions. An appeal book is insufficient, if it does not contain a case or exceptions, presenting the conclusions of fact and of law, and a proper statement of the questions presented, and of the exceptions to rulings.

Such an appeal book, although it contains the pleadings, the referee’s report, the judgment, and notice of appeal, presents no record into which the court can look for the reasons and ground of the judgment, or to find errors, if any there were, at the trial; and when those parts of such a record which have no relation to the trial, present no error, the Court of Appeals will affirm the judgment, if it be appealable.

Appeal from judgment of the general term of the seventh -district, affirming judgment for the plaintiffs on the report of a referee.

The facts sufficiently appear in the opinion..

S. H. Northrup, for the defendants, appellants.

R. L. Dorr, for the plaintiffs, respondents

This cause was tried by a referee, and judgment was entered on his report in favor of the plaintiff for $454.07 and costs. The defendant, without making a case, appealed to the Supreme Court at general term, where the judgment was affirmed. He then appealed to this court. The judgment in its nature is appealable, because it is a determination embraced within the definition of the 11th section of the Code of Procedure; and section 333 declares that an appeal may be taken to the Court of Appeals in the cases mentioned in section 11. But it is one thing to hold that a judgment can be appealed from, and quite another to decide that the supposed errors occurring at the trial can be reviewed.- The mode of review, where it is sought to reverse a judgment for errors at the trial, is particularly pointed out in the Code. In Hunt v. Bloomer (3 Kern., 341), and in Johnson v. Wheelock (3 Id., 344), the sub

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ject was carefully considered by this court, and the opinions delivered in those cases were approved by all the judges. In one of the cases the trial had been by the court, and in the other by a referee, and we held that in either mode of trial a review could be had only upon a case made, which should contain the conclusions of fact and of law, with a proper statement of the questions presented, and the exceptions taken to the rulings upon the j)oints of law. The language of the Code is indeed so plain that it may well occasion surprise that there should be any doubt as to tire proper practice. Section 268, in reference to trial by the court, declares that the party desiring to appeal may prepare a case or exceptions, in settling which the judge must specify the facts found by him, and his conclusions of law, and that the questions, whether of fact or of law, can only be reviewed in the manner prescribed by that section. Section 272, which relates to trial before referees, declares that trial by referees is to be conducted in the same manner as trial by the court, that they must state the facts found and the conclusions of law separately, and their decision must be given in like manner, and may be excepted to and reviewed in like manner, but not otherwise, and they may in like manner settle a case on exceptions. If language which is ■ extremely plain can mean any thing, a trial, whether by the court or by referees, cannot be reviewed unless the party desiring to appeal prepare a document which the Code denominates a case or exceptions, and has it settled with a proper finding of the facts and conclusions of law. These facts and conclusions must be stated in the case, and we cannot look for them elsewhere.

The decision of the judge or report of the referee, which goes into the record, is merely the authority for entering the judgment, and therefore it merely states, in general terms, what the judgment is to be. All beyond this is mere supererogation. The party wishing to appeal, I repeat, must prepare his case with such a finding upon the facts and the law as he chooses to insert. The other party has a right to propose amendments, and the whole is finally settled by the judge or referee. The practice is extremely simple, although infinite pains appear to have been taken on the part of many to make it difficult and incomprehensible.

In the present case the appeal book contains nothing but the

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pleadings, the report of a referee, the judgment, and notice of appeal. We cannot look into the report for the reasons and grounds of the judgment, nor to find errors, even if there were any at the trial. The papers are defective for the want of such a case as the Code imperatively requires. The judgment, as I have said, is appealable, because it is the final determination of the Supreme Court at a general term, but we can only look into those parts of the record before us which have no relation to the trial. Those parts of the record disclose no error, and we therefore affirm the judgment.

Strong, J., dissented.