The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1899-04-14

further than clear explicit
language of the statutory provisions above mentioned support
Of conclusion we find it in fact that
the circuit rendered upon the peadng alone with
trial upon the facts and without any evidence and the
exceptions thereto having been TAKEN allowed signed and filed
aforesaid and the clearly appearing of record they
thereby duly and sufficiently designated identified pointed
thus obviating any necessity for formal bill of exce
tons
The complained of in this could been
clearly shown by formal bill of exceptions than they
have been without The only purpose of bill of excep
tons designate identify and point supposed of
the lower which may during the trial upon the
evidence and facts and which would otherwise appear upon
the record that the appellate know what is before
for consideration
In the of Doco, Hartman Il Ind 230 Judge Elliott
says: eff it had been necessary outside
of those properly disclosed bv the record then, doubtless bill
of exceptions would have been necessary but here the facts
fully and airnavey shown by the record and bill
of exceptions could have supplied additional material
information Where full information and all essential facts
shown in the record bill of exceptions necessary
said in Young Martin, Wal 354, no bill Of excep
tons necessary where the alleged apparent upon the
face of the record" In the of Hamlin Reynolds %
ILL., 2O9 which Judgment upon demurrer Judge Walker
says: The Judgment the demurrer much part of
the other Judgment that rendered by the
in the The office of bill of exceptions is to preserve
that of record which otherwise would not appear of record
By the practice of of law Jurisdiction the evil
cause, the of the in admitting
rejecting evidence adavis motions and the
which motions made, the giving and refusing Instructions
and other matters do not of record and are
part of it. unless embodied in bill of exceptions, and by
made part of the record of the In the
all questions the Judgment of the court is
usually spread upon the roll of its proceedings While
judgments by default demurrer of nonsu final
Judgment verdict have by the practice at all periods
and regarded part of the record 1t would
be improper practice embody Judgment demurrer IN
bill exceptions, would useey incumber the record
and unnecessarily add to the expense Of litigation
Ency of Plead. & Prac. 4o7 and numerous cited
Judge Of District Court, So 4O7; State Jndy
Ind. 1873.
In the case Gold Mining Co. 70 Cal. 800 the
held that can ruling of the lower court in
rendering Judgment the peadngs without trial of the
action be reviewed appeal rom the Judgment without
being incorporated in bill of exceptions when the judgment
recites that it rendered on the pleadngs.'
We therefore, hold that the defendants properly before
this court upon exceptions they entitled
be heard thereon.
Kinney tG Balou for plaintiff
Alfred s. Hort,ceH and L. A. Thm,ston for defendants
DISSENTING OPINION OF WHITING, J.
respectfully majority of the
court
This action law reurnabe before the First Circuit
Court the August 1898 The defendant demurred to
the complaint and hearing thereon had by the court in
time and the demurrer overrued. Thereafter,
being filed by the defendant Judgment entered for
plaintiff its motion The defendant duly excepted to the
decision overrung the and also excepted the
granting of the motion for judgment Each exception
duced writing allowed by the court and duly fled These
exceptions embodied in bill of EXCEPTIONS but de
PENDANT filed the following notice of appea
Defendants appeal. The defendant hereby gives notice
of appeal and hereby appeals from the decision of Judge Stan
ley made August 22d A. D. 1898 in the above entitled cause
ordering that Judgment be entered upon the record for the
amount of plaintiffs claim and costs"
This appeal duly certified by the judge. 1t will be
this appeal does refer the exceptions taken
the overrung of the demurrer The plaintiff moved this
court appeal defendant ground that
Al It, boror1
regards the exception the overulng of the demurrer,
there has been appeal taken allowed is it embodied