Otis v. Spencer — 15 How. Pr. 425

Majority

p. 425

COURT OF APPEALS.

Daniel C. Otis and others agt. George C. Spencer and others.

Headnote

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 Sunt agt. Bbomer, (3 Kern. ■ 341, and 12 Sow. 561,) and in Johnson agt Whitbck, (id. 344 and 511,) the subject was carefully considered by this court, and the opinions delivered in those cases, were approved by all the judges.

It was held in those cases, whether a trial by the court or a referee, that 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 points of law. These facts and conclusions must be stated in the case, and the court cannot look for them elsewhere.

p. 426

In this case, the appeal book contained nothing but the- pleadings; .the report of ' a referee, the judgment and notice of appeal. Held, that the court could not 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 were defective for want of such a case as the Code imperatively requires.

March, Term, 1858.

N. Hill, Jr., for plaintiffs.

F. Kernan, for defendants.

This cause was tried by a referee, and judgment was entered on his report in favor of the plaintiffs for $454.07 and costs. The defendant without making a case appealed to thé supreme court at general ferm, 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 383 declares that" an 'appeal may be taken to the court of appeals in the cases mentioned in section eleven. 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 agt. Bloomer, (3 Kernan, 341, and 12 How. 567 ,) and in John son agt. Whitlock, (id. 344 and 571,) the subject 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 cohid 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 points 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 the proper practice. Section 268, in reference to trial by the court, declares that the party desiring to appeal,

p. 427

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 he 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 anything, 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 that 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 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 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

p. 428

relation to the trial. Those parts of the record disclose ho error, and we therefore affirm the judgment.

All the judges concurred in the foregoing opinion, except Strong, Judge, who dissented. Pratt, Judge, read an opinion for affirmance on the further ground that the report of the referee disclosed no error at the time. Judgment affirmed.