Mills v. Miller

2 Neb. 299

• Court: Nebraska Supreme Court
• Decided: July 1, 1873
• Status: Published

Opinion

CEOTmSB,'J.

It was quite useless to insert in this record the demurrer to the petition and the order of the Court overruling it. By answering, the defendant lost the benefit, if any, of his exception to the order. Brown v. Saratoga R. R. Co., 18 N. Y., 495; Campbell v. Wilcox, 5 West. Jurist, 208; Cleaswater v. Meredith, 1 Wal., 42; Aurora City v. West, 7 id., 92 ; Young v. Martin, 8 id., 354.

Sect. 582 of the Code, in defining what may be reviewed, says, —

“ A judgment rendered or final order made by the District Court may be reversed, vacated, or modified by the Supreme Court for errors appearing on the record.” No final order has been made in the case. The object of the action is to obtain partition betwe'en the parties of the premises described. Among the first of the orders made is that sustaining a demurrer to the defendant’s answer. This is followed by the Court declaring the interest of the respective parties, and the appointment of referees, as provided by the statute, to make division accordingly. They are to report whether actual partition can be made. To this defendant’s counsel excepts generally. The referees, reporting that actual partition cannot be made, are, by a further order of the Court, directed to sell in a manner pointed out in the order: and, while the order contains that which might have been reserved on a subsequent or final order of the Court, they are required to report their proceedings under this order of sale; and, if confirmed, deeds are to be made to the purchaser of the premises. The record does not disclose whether any sale has been made. If it had been made, it might not have been confirmed: exception to some of the proceedings had in the sale might be taken, which would form the proper subject of review here. So, whatever may be our determination upon the record before us, we may be called on to pass upon those questions liable to arise subsequent to the proceedings as disclosed in the record here. Clestes v. Gibson, 15 Ind., 10 ; Cook v. Knickerbocker, 11 id., 230;Hunter v. Hunn, 25 Miss., 349; Ivory v. Delone, 26 id., 505; Gates v. Salmon, 28 Cal., 230 ; Peck v. Vanderberg, 30 id., 11. This objection might be regarded as decisive of the case, although not urged by counsel, as consent cannot impose upon the Court the duty of passing on a case not provided for by statute, — one which might come again before us at no distant day. Mabry v. Dickrey, 31 Ala., 243.

Notwithstanding several exceptions appear from the record to have been taken, nevertheless, for reasons hereinafter stated, but one presents any question for our consideration. This is the exception taken by defendant to the order of the Court sustaining the demurrer to defendant’s answer; and, inasmuch as it was not relied on in the argument, it may be briefly noticed and disposed of.

The answer, in substance, avers that these parties derived title from Merritt, and one Lorin Miller, father of the plaintiff, at a time when said Merritt and Miller were in litigation respecting it. Miller paid to Merritt six hundred dollars, who quitclaims his interest to Mills and Miller, the parties here; while Lorin Miller does the same with respect to his interest. Subsequent to this arrangement, the Court, having before it the question as to the right of Merritt and Lorin Miller to the property, determined in favor of the former. It is now claimed that Mills was induced to yield a joint interest in his purchase from Merritt, and accept an interest in what he believed a right of Lorin Miller, by the representations of the plaintiff that his father had a title in law or equity to the same, and under a mistake as to the rights of the parties in said premises.

There is no defence in this. No fraud is alleged, nor does there appear any mutual mistake of facts. The question of right to the property, as between Merritt and Lorin Miller, was before the courts for determination when Mills purchased. What the plaintiff may have said was, at most, but the expression of an opinion as to what the courts would decide. Mills had the same means of concluding what would be the final result, and it was folly in him to rely on the declarations of Miller in the premises. Whether too impatient to await the Court’s determination, or choosing not to hazard an adverse determination, the parties entered into the arrangement upon equal footing, paying the price and accepting the interest respectively that the situation justified. Either as a matter of ordinary business, or as the amicable adjustment of a thing in litigation, the transaction has the support of law. Russell v. Cook, 3 Hill, 504; Stewart v. Ahrenfeldt, 4 Denio, 189 ; Barlow v. Ocean Ins. Co., 4 Met., 270 ; Grates v. Shults, 7 Mich., 133; 1 Pars. on Con., 364.

Viewed as a mistake of law, the defendant’s position is no better. The parties were of equal ability to enter into the agreement, and had equal facilities for determining, each for himself, the true state of the title. Either was at liberty to speculate upon the probable result of the litigation then pending; and, from any thing that appears, each equally liable to be mistaken. With no fraud practised on him, Mills is bound by any misinterpretations of the law with respect to the true state of the title to the land purchased. Ignorantia juris non excusat is a maxim by which he is governed. To show that the maxim is not inflexible, and that this case should be regarded as an exception, the case Pusey v. Desbouvrie, 3 Peere Williams’s Reports, 315, is urged upon our attention. There the daughter of a freeman of London had a legacy of ten thousand pounds left her by her father’s will, upon condition that she should release her orphanage share; and, after her father’s death, she accepted the legacy, and executed the release. Upon a bill after-wards filed by her against her brother, who was executor, the release was set aside, and she was restored to her orphanage share, which amounted to forty thousand pounds. Lord Chancellor Talbotf, among other things, says, in delivering his opinion, “ It is true it appears that the son did inform the daughter that she was bound either to waive the legacy given by the father, or release her right to the custom ; and, so far, she might know it was in her power to accept either the legacy or the orphanage part. But I hardly think she knew she was entitled to have an account taken of the personal estate of her father, and first to know what her orphanage part did amount to; and that when she should be fully apprised of this, and not till then, she was to make her election; which very much alters the case. For probably she would not have elected to accept her legacy, had she known or been informed what her orphanage part amounted unto before she waived it and accepted the legacy.”

Mr. Justice Story, in commenting on this case, says, “ It is apparent from this language that the decision of his lordship rested on mixed considerations, and not exclusively upon mere mistake or ignorance of law by the daughter. There was no fraud in her brother: but it is clear that she relied on her brother for knowledge of her rights and duties in point of law; and he, however innocently, omitted to state some most material legal considerations affecting her rights and duties. She acted under this misplaced confidence, and was misled by it; which of itself constituted no inconsiderable ground for relief. But a far more weighty reason is, that she acted under ignorance of facts; for she neither knew nor had any means of knowing what her orphanage share was when she made her election. It was therefore a clear ease of surprise in matters of fact as well as of law.” Story’s Eq. Jur., sect. 118. That case is readily distinguished from the one at bar. Here the parties treated upon equal terms. All the facts surrounding the state of the title to the property in question were open to both. Neither suppressed any fact, and neither was called upon to disclose any thing to the other. For the plaintiff to declare that Lorin Miller had a title to the property was but the expression of an opinion which he w'as at perfect liberty to make, and was one that had warranted the employment of counsel, and defending such claim in court.

But, as covering this case more completely, Judge Bedfield, in a further comment on the case of Pusey v. Desbouvrie and the observations of Justice Story above, remarks, “ But we should be careful not to understand the proposition here laid down as having any just application to the subject of compromising doubtful and uncertain rights, or to the disposition of contingent or uncertain interests. In such cases, where the parties have equal means of knowledge, no relief in equity will be afforded on the ground of results being different from what the parties anticipated; for this is one of the hazards of that class of contracts which each party incurs by the very nature of the contract.” Story’s Eq. Jur., sect. 118.

The demurrer to the defendant’s answer, in my opinion, was correctly sustained; and the first assignment of error must fall. Passing to the second, it is averred “ that the said Court erred in ordering partition to be made of the premises in the said petition described.” Where, how, or in what respect, the Court erred, counsel has left this Court to study out. The record or brief of counsel does not make any suggestion in aid of this point. Under a petition containing all the necessary averments, with, no denial of any facts therein set out, how it is that the Court erred in ordering partition is incomprehensible to me.

The third assignment of error is, “that the said Court erred in rendering judgment for a partition of said premises, and for an account of rents and profits upon the pleadings only, after an order sustaining the demurrer of the said plaintiff to the answer of the said defendant.” To this there are several answers.

First, I do not believe it necessary for the plaintiff to exhibit and file his documentary proof, or copy of same, with the clerks, as is claimed to be necessary under sect. 809 of the Code, in a case conducted as this was. The next section says, “ If the statements in the petition are not contradicted in the manner aforesaid, or by the documentary proof exhibited, as above required, they shall be taken as true.” Here the statements in the petition were not only not contradicted, but, by the interposition of the demurrer, they were admitted to be true. Neither the sense nor the letter of the statute required the exhibition of the documentary proof. Second, It does not follow, because the journal entry recites that “ this cause came on to be heard on the pleading,” that no proof was taken, if any was necessary. In Cook v. Hancock, 20 Texas R., p. 2, we find a judgment entry in these words : “And now come the parties by attorney and announce themselves ready for trial, and, waiving a jury, submit the cause to the judgment of the Court; and it appearing, upon an inspection of the pleadings by the Court, the Court rendered a judgment for the plaintiff, it is ordered that the plantiff recover of the defendant, A. H. Cook, the sum of $4,544.56, being the principal and interest due on the notes in controversy.” The error assigned was, “giving judgment on pleadings without evidence to sustain allegations.” The Court says, “ It is merely the idle and superfluous expression of the person who drew up the judgment. It was not necessary to state the facts on which it was predicated. Whether the statement, ‘ upon an inspection of the pleadings,’ be regarded as inconsistent, or as only partial, it will not render the judgment erroneous.” If it were error for the Court to order judgment upon the pleadings without the taking and filing proof as claimed, it is the duty of counsel relying on such error to show clearly that no such proof was taken. If any presumptions are to be introduced, they will rather be in support of a judgment than against it.

Third, A further answer is, that the objection is for the first time specified in the petition filed in this Court. The defendant being properly brought before the Court, and called upon to answer the petition of the plaintiff, failing to build up a defence of fraud or mistake, attempts no other, and so admits the facts stated in plaintiff’s petition to be true. Still, by counsel he lingers in court, and confines himself to excepting to every order of judgment made in the case, but does not trouble himself to point out in what particular it is objectionable, asks for no modification, nor furnishes any reason or argument in support of any objection. This makes quite easy work for counsel, but quite hard for courts, if they are to examine carefully each step taken, and surmise what possible objection may be urged against their orders when they come to be reviewed in the appellate court.

Take the exception to the first order next after that taken by the order sustaining the demurrer. It is, simply, “ To which order defendant excepts.” The order excepted to fixes the interest of the respective parties; appoints referees to make partition, who shall inquire whether the premises are capable of actual division, and report accordingly. Against so much of the order no fault is found here; nor do I see that any can be. But it turns out, however, that here, for the first time, objection is made to the introductory or formal part of the order suggested by the taste of the clerk or attorney who draughted it, which recites that the Court acted upon the pleadings, without it appearing affirmatively that proof was exhibited. Why was nothing said about this in the Court below ? There was the place to present that question. If the attention of the Court had been challenged to this point, and the proof had been in fact exhibited, it would have been quite easy to modify the entry so as to show the fact, or, by omitting any reference to the pleadings, destroy the foundation for any inference that no proof was taken. If any thing beyond the admission of the truth of the allegations of the petition, arising from the defendant not denying them, was deeined necessary to warrant the order or judgment made, it was the duty of counsel to insist upon it in the Court below. Objecting to the entry of judgment without proof, or moving to modify or vacate the same if entered for such reason, clearly expressed in the motion, would have brought the subject directly to the attention of the Court. Should. the opinion of the Court have been adverse to that of counsel, a bill of exceptions would have saved the point for our examination.

An exception is an objection taken to a decision of the Court upon a matter of law. Code, sect. 307. Where the decision objected to is entered on the record, and the grounds of objection appear in the entry, the exception may be taken by the party causing it to be noted at the end of the decision that he excepts. Sect. 310. As in the instance of defendant’s exception to the order of the Court sustaining the demurrer to his answer, the grounds of the objection to the answer are stated in the demurrer, — that facts sufficient are not therein contained to constitute a defence. The answer, demurrer, and the order upon it, are properly parts of the record. Code, 446. We therefore have clearly before us the grounds of objection, the decision of the Court, and the exception thereto. So, in cases tried by the Court without a jury, the Court may be called upon, under sect. 297, to state in its finding its conclusions of law as well as of fact found. Here the party may cause to be" noted at the end of such findings his exceptions to such conclusions as he may choose to except to. But to what does the defendant object here ? and what are the grounds of objection ? Must the Court come to a standstill, and review every step in the proceeding, starting with the question of jurisdiction, and satisfy itself that every thing has been regularly done, at the hazard of having its judgment reversed upon points never disclosed, or adroitly concealed ? Most assuredly not. Appellate courts are provided to review the proceedings and correct the errors of inferior ones. Before a party is entitled to be heard here, he must have exhausted his remedy in the Court below. For that, purpose he must have presented the several questions of law -fairly and fully, and must have obtained an unequivocal ruling thereon. If dissatisfied with the decision of the Court, he may preserve an exception. Plere, to be of any avail, the record should show that the objection set out in the third allegation of the petition in error was distinctly presented to the Court. From the record we cannot conclude but that proof was exhibited: if it was not, it may have been expressly or tacitly waived. We will not guess that error was committed. It is the duty of the party complaining, not only to show that error occurred prejudicial to him, but to present here a record showing affirmatively and clearly that such is the fact.

In Lawther v. Agee, 34 Mo., 372, it is said, “ An irregular judgment will not be reversed on writ of error in first instance here ; but the defendant must have applied in Court below to set it aside.” In Alshuler v. Yandes, 17 Ind., 291, an action was brought on a note, as well as to enforce a vendor’s lien. There was a judgment directing the property to be sold, without any inquiry as to sufficiency of personalty as there required. It was held that application should have been made to the Court below to correct the alleged errors.

Ingersoll v. Bostwick, 22 N.Y., 425, was an action to recover specific personal property. By the New-York Code, the judgment should have been in the alternative for the return of the property or for its value. The judgment was for the value of the property absolutely. It was held that it was an irregularity that should have been corrected in the Court of original jurisdiction. Hunt v. Bloomer, 3 Kern, 341; Magee v. Baker, 4 id., 435; Oldfield v. New-York and Harlem R.R., 4 id., 310; Smith v. Grant, 15 N. Y., 590; Otis v. Spencer, 16 id., 610; Carman v. Pultz, 21 id., 55; Chamberlain v. Dempsey, 36 id., 148.

The several assignments of error are open to the same criticism.

The judgment of the District Court must be affirmed.