Malone v. Beardsley — 92 Cal. 150

Majority

p. 150

[No. 13793.

Department Two.

December 1, 1891.]

JOHN MALONE, Appellant, v. W. H. BEARDSLEY et al., Respondents.

Headnote

Appeal—Review op Nonsuit — Error of Law — Exception — Insufficiency of Evidence. — An error in granting a nonsuit is an error in law, and must be excepted to, or it will not be reviewed on appeal; and it cannot be reviewed on the ground that the evidence is insufficient to - sustain the decision.

Id. —Presumption — Exception to Order. — In the absence of any showing in the record that an order granting a nonsuit was excepted to, it ■ must be presumed upon appeal that no exception was taken.

p. 151

Appeal from a judgment of the Superior Court of Del Norte County.

The facts are stated in the opinion.

R. W. Miller, and Lucas & Miller, for Appellant.

L. F. Cooper, Sawyer & Burnett, and L. F. Coburn, for Respondents.

This is an appeal from a judgment of nonsuit, and the case is brought here on a bill of exceptions.

It appears that the case was tried by the court without a jury, and when the plaintiff rested, the defendants moved for a nonsuit, and the court granted the motion on the ground that there was “ a failure of proof to warrant a judgment of this court in favor of plaintiff.”

The appellant contends that, under the evidence introduced by him, he was entitled to a judgment against the respondents, and that the court therefore erred in granting their motion.

The respondents object that the points made for a reversal of the judgment cannot be considered, for the reason that no exception was taken to the ruling of the court.

This objection seems to be well taken. The law must now be regarded as settled in this state, that an error in granting a nonsuit is an error in law, and must be excepted to, or it will not be reviewed on appeal, and that it cannot be reviewed on the ground that the evidence is insufficient to sustain the decision. (Schroeder v. Schmidt, 74 Cal. 460 ; Flashner v. Waldron, 86 Cal. 211 ; Warner v. Darrow, 91 Cal. 309 .)

Here the record does not show that any exception was taken to the order of the court granting the nonsuit, and in the absence of such showing, it must be presumed that no exception was taken.

It follows that the judgment should be affirmed.

p. 152

Vanclief, C., and Fitzgerald, C., concurred.

For the reasons given in the foregoing opinion, the judgment is affirmed.

Hearing in Bank denied.

Cases cited

Flashner v. Waldron 86 Cal. 211 Cal. 1890-10-25 p. 151
Warner v. Darrow 91 Cal. 309 Cal. 1891-09-21 p. 151