Harriman v. Sanger , 67 Me. 442 ( 1877 )

Virgin, J.

“To the above rulings and to the charge of the justice presiding the plaintiff excepts” is the language of the plaintiff’s bill of exceptions.

1. No ruling relating to the reading to the jury of the original interrogatories together with the deposition having been made or requested, the objection thereto is not covered by the bill of exceptions ; and therefore it cannot be considered. Moreover, if the objection were properly before us on motion, we cannot conceive how, in the absence of any suggestion of fraud, or of mistake in the copy, the plaintiff could be prejudiced by the act complained of. The answers would be unintelligible without the interrogatories ; and if the copy which had become detached from the deposition was a correct transcript of the original, the answers would' speak the same whichever set of interrogatories should be read in connection with them.

2. Assuming the sixth interrogatory to be leading in form as contended, it was within the discretion of the presiding justice to admit the answer'; and its admission is not subject to exception. Blanchard v. Hodgkins, 62 Maine, 119.

The further exception to this interrogatory, found in the bill of exceptions, expressed in the following general terms : “Objections to such interrogatories, as defective in substance, were made at the trial, and before the answers were read to the jury,” cannot be sustained. The language is too general. The excepting party can test the ruling made at nisi prius and none other. What the objection raised there was, if other than a general one, the bill of exceptions fails to disclose. It would seem but fair and just that objections to any particular question or answer, to be available on exceptions, should be specific, in order that the party offering it, may on hearing the objection, withdraw the proffered testimony if he •choose, rather than suffer the delay and expense of going to the law court to settle it. Glidden v. Dunlap, 28 Maine, 379. At any rate, if the interrogatory was admissible upon any ground, the plaintiff was not aggrieved (R. S., c. 77, § 21); unless it was .used for some purpose for which it was not admissible, which these general exceptions utterly fail to show. But it was clearly admissible on several grounds and among them that of identification.

3. The same objections are made to interrogatory seven. The plaintiff now contends that it was irrelevant. Assuming this to be true, the plaintiff does not show that he was aggrieved by it; and the exception cannot be sustained. Millett v. Marston, 62 Maine, 477.

4. The ninth, eleventh and thirteenth interrogatories called for facts and were clearly admissible.

5. The plaintiff alleges a general exception to the entire charge, comprising thirteen printed pages ; and thus brings before us the whole body of the law involved in the case without specifying a single error in his bill of exceptions. The unfairness of such a course, both to the court and the other party, is too palpable to require anything more than a simple statement of it. It is not the design of a bill of exceptions to draw the whole matter of a trial again into examination, but only such specific points as the excepting party considers illegally prejudicial. This mode of practice, long ago condemned by several of the most respectable courts of the land, and properly characterized by this court in State v. Reed, 62 Maine, 129, 135, will be tolerated no longer. On the contrary, we hold as it has been held in other jurisdictions, that a general exception to the charge, or to a series of propositions therein contained, cannot be sustained when any independent portion excepted to is sound. There is no pretense, that the principles of law laid down in the charge are not sound, that is sufficient under this general exception.

This practice of spreading out the whole charge on a bill of exceptions was discountenanced by the U. S. supreme court in the early cases of Evans v. Eaton, 7 Wheat. 356, 426 ; Magniac v. Thompson, 7 Pet. 348 ; Gregg v. Sayre’s Lessee, 8 Pet. 244; in the later case of Johnston v. Jones, 1 Black. 209, 220 ; and condemned in the recent cases of Rogers v. The Marshal, 1 Wall. 644; Harvey v. Tyler, 2 Wall. 328; Beaver v. Taylor, 93 U. S. 46, 54.

So in New York as appears in Lansing v. Wiswall, 5 Denio, 213, 218, where the court say: “An exception can only be taken on some particular point of law, for a mere general exception to a general charge amounts to nothing.” “A general exception to the whole charge and to each part of it, when' the charge involves more than a single proposition of law, and is not in all respects erroneous, presents no question for review on appeal,” say the same court in Jones v. Osgood, 6 N. Y. 233. See also Hunt v. Maybee, 7 N. Y. 266, 273. Decker v. Mathews, 12 N. Y. 313, 320. Caldwell v. Murphy, 11 N. Y. 416. Walsh v. Kelly, 40 N. Y. 556.

“ A general exception to the entire charge,” (say the court in Thrasher v. Tyack, 15 Wis. 258) “will not avail a party unless the entire charge be erroneous.” See also Tomlinson v. Wallace, 16 Wis. 224. Morse v. Gilman, 18 Wis. 373.

Same doctrine is held in Michigan. Geary v. The People, 22 Mich. 220.

And in Iowa, Mershon v. National Ins. Co. 34 Iowa, 88.

In Vermont the court say: “This court, sitting in error, can only try such errors as are specified and brought up on exceptions. The habit that has sometimes obtained, of “dragging” a case in this court, as for something lost, to find a fault that was undiscovered and unheeded in the trial of the cause, is ever unavailing to the client, and a deviation from professional propriety and duty.” Sequin v. Peterson, 45 Vt. 255, 258.

Exceqotions overruled.

Appleton, O. J., Dickerson, Daneorth, Peters and Libbey, JJ., concurred.