Corn, Chiee Justice.
This suit was brought by plaintiff in error to set aside a sale of certain dams and irrigation ditches for taxes claimed to be due to Weston County. The defendants answered, first, by a general denial. For a second defense they allege that “the County Treasurer of said Weston County proceeded to advertise the property in controversy as required by law, and the defendant, the Kent-Bissell Cattle Company, were the purchasers thereof, for value and in good faith, and they are now and ever since have been the absolute and unqualified owners thereof.” And the answer concludes with the prayer: “That the said sale be approved by this court and the property in controversy and the title thereto be quieted in the defendant, the Kent-Bissell Cattle Company, and for such other and further relief as the court may deem just and proper in the premises.”
The court, upon a hearing, found that the sale for taxes was regular and legal, and vested 'the title to the property in the defendant cattle company, and ordered that the sale be approved and the title quieted in the said company. No exception was taken by the plaintiff to any of the proceedings or orders of the court below, and there was no motion to set aside or modify the judgment, but the case is before us, without any bill of exceptions, upon the record proper of the District Court. Plaintiff in error urges that, under the pleadings and the findings of the court, as set forth in-the order and judgment, it had no jurisdiction or power to' render any judgment against the plaintiff other than to dismiss his petition and allow costs against him in favor of the defendants; and that the judgment, in so far as it attempts to quiet the title of the company to the property and to enjoin’ plaintiff from making any claim thereto; is not supported by the pleadings' or the'findings’ of the court and should be reversed. Defendants in error, upon the [6] other' hand, contend that, in the absence of any bill of exceptions or transcript of the evidence, and no exception noted upon the record to the entry of judgment in the court below, the objection will not be heard or entertained in the first instance in this court. It is not contended by defendants in error that the judgment is supported by the pleadings or the findings, but the case is submitted by them upon the single proposition that, in the absence of any sort of exception by the plaintiff in the court below, the judgment is not before this court for review.
The question is scarcely an open one in this court. The Supreme Court of Ohio, from which state the provisions of our statutes, bearing upon the subject of exceptions, were taken, long ago decided that “they manifestly relate to decisions which are made by the court upon questions of law which arise during the progress of the trial.” And they say, “these provisions of the code do not relate to the final judgment of the court, which, at the close of the trial, definitely fixes the rights of the parties in the action. The judgment is not properly a part of the trial, but forms the subject of a distinct title in the code. If the record shows such final judgment to be erroneous, it is the right of the party aggrieved to have it reversed, vacated or modified, on petition in error, to the proper reviewing court. To note an exception to a final judgment, in the court which renders it, after the controversy is there ended, would seem to be utterly futile.” (Com. Nat. Bank v. Buckingham, 12 O. St., 402.) Other states adopting the Ohio code of procedure have, so far as we have been able to ascertain, all adopted this view of the meaning of' these provisions. (Vreton v. Beltezore, 17 Neb., 399; Black v. Winterstein, 7 Neb., 225; Koehler v. Ball, 2 Kan., 169; Lender v. Caldwell, 4 Kan., 346; Wilson v. Fuller, 9 Kan., 176; Wood v. Nicolson, 43 Kan., 462.)
I11 the last named case the plaintiff obtained judgment quieting his title under a tax deed. The defendant did -.not preserve any exception and did not appear ’or' answer [7] in the lower court, but took the' case to the Supreme Court, alleging that the petition did not state facts sufficient to constitute a cause of action against her. The Supreme Court found, upon an examination of the record, that the petition was fatally defective and reversed the judgment. The court say: “Any material error apparent in the final judgment of a District Cóurt may be corrected by proceedings in error in this court, although no exception was taken by the party complaining, and no appearance by him at the trial and judgment, and no motion made to set aside the judgment.” And the Supreme Court of this territory, prior to the adoption of the Ohio code in this jurisdiction, decided the point in the same way, citing Ins. Co. v. Praggio, 16 Wall., 378, and Mitchell v. Anderson, 1 Hill (S. C.), 69. (McNamara v. O’Brien, 2 Wyo., 428.) These authorities are applicable to the case under consideration, and we think they are binding upon this court.
Counsel for defendants in error, however, referring to 8 Ency. PL & Pr., 287, and the cases there cited, maintain that the Supreme Court of the United States and the courts of twenty-four of the states establish a different rule. But this is a misconception of the decisions. It is true that matters occurring in the trial, not vital to the question of jurisdiction or the foundation of right and not in the record proper, will not be noticed by the reviewing court unless they are excepted to at the time and brought into the record by a bill of exceptions. They are presumed to have been waived. But error of a substantial kind, appearing upon the face of the record proper, is error in law and will be corrected by the reviewing court without any exception having been taken, and, of course, no bill of exceptions is necessary to bring such matters into the record. (Andrews Stephen’s Pleading, 204.) This principle is repeated over and over again by the Supreme Court of the United States. In Slacum v. Pomery,. 6 Cranch, 221, the court found that the omission of a certain averment was fatal to the declaration, and they say: “Had [8] this error been moved in arrest of judgment, it is presumable, the .judgment would hav.e been arrested; but.it is not too late to allege as error, in this court, a fault in the declaration, which ought to have prevented the rendition of a judgment in the court below.” In Bennett v. Butterworth, 11 How., 676, the verdict was held not to support the judgment, and the.court say: “As these errors are patent upon the record, they are open to revision here, without any motion in arrest of judgment or exception taken in the District Court.” (Suydam v. Williamson, 20 How., 433; Pomeroy v. Bank, 1 Wall., 600; Rogers v. Burlington, 3 Wall., 661; Thompson v. R. R. Co., 6 Wall., 137; Ky. Life Ins. Co. v. Hamilton, 63 Fed., 93.)
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Corn, Chiee Justice.
This suit was brought by plaintiff in error to set aside a sale of certain dams and irrigation ditches for taxes claimed to be due to Weston County. The defendants answered, first, by a general denial. For a second defense they allege that “the County Treasurer of said Weston County proceeded to advertise the property in controversy as required by law, and the defendant, the Kent-Bissell Cattle Company, were the purchasers thereof, for value and in good faith, and they are now and ever since have been the absolute and unqualified owners thereof.” And the answer concludes with the prayer: “That the said sale be approved by this court and the property in controversy and the title thereto be quieted in the defendant, the Kent-Bissell Cattle Company, and for such other and further relief as the court may deem just and proper in the premises.”
The court, upon a hearing, found that the sale for taxes was regular and legal, and vested 'the title to the property in the defendant cattle company, and ordered that the sale be approved and the title quieted in the said company. No exception was taken by the plaintiff to any of the proceedings or orders of the court below, and there was no motion to set aside or modify the judgment, but the case is before us, without any bill of exceptions, upon the record proper of the District Court. Plaintiff in error urges that, under the pleadings and the findings of the court, as set forth in-the order and judgment, it had no jurisdiction or power to' render any judgment against the plaintiff other than to dismiss his petition and allow costs against him in favor of the defendants; and that the judgment, in so far as it attempts to quiet the title of the company to the property and to enjoin’ plaintiff from making any claim thereto; is not supported by the pleadings' or the'findings’ of the court and should be reversed. Defendants in error, upon the [6] other' hand, contend that, in the absence of any bill of exceptions or transcript of the evidence, and no exception noted upon the record to the entry of judgment in the court below, the objection will not be heard or entertained in the first instance in this court. It is not contended by defendants in error that the judgment is supported by the pleadings or the findings, but the case is submitted by them upon the single proposition that, in the absence of any sort of exception by the plaintiff in the court below, the judgment is not before this court for review.
The question is scarcely an open one in this court. The Supreme Court of Ohio, from which state the provisions of our statutes, bearing upon the subject of exceptions, were taken, long ago decided that “they manifestly relate to decisions which are made by the court upon questions of law which arise during the progress of the trial.” And they say, “these provisions of the code do not relate to the final judgment of the court, which, at the close of the trial, definitely fixes the rights of the parties in the action. The judgment is not properly a part of the trial, but forms the subject of a distinct title in the code. If the record shows such final judgment to be erroneous, it is the right of the party aggrieved to have it reversed, vacated or modified, on petition in error, to the proper reviewing court. To note an exception to a final judgment, in the court which renders it, after the controversy is there ended, would seem to be utterly futile.” (Com. Nat. Bank v. Buckingham, 12 O. St., 402.) Other states adopting the Ohio code of procedure have, so far as we have been able to ascertain, all adopted this view of the meaning of' these provisions. (Vreton v. Beltezore, 17 Neb., 399; Black v. Winterstein, 7 Neb., 225; Koehler v. Ball, 2 Kan., 169; Lender v. Caldwell, 4 Kan., 346; Wilson v. Fuller, 9 Kan., 176; Wood v. Nicolson, 43 Kan., 462.)
I11 the last named case the plaintiff obtained judgment quieting his title under a tax deed. The defendant did -.not preserve any exception and did not appear ’or' answer [7] in the lower court, but took the' case to the Supreme Court, alleging that the petition did not state facts sufficient to constitute a cause of action against her. The Supreme Court found, upon an examination of the record, that the petition was fatally defective and reversed the judgment. The court say: “Any material error apparent in the final judgment of a District Cóurt may be corrected by proceedings in error in this court, although no exception was taken by the party complaining, and no appearance by him at the trial and judgment, and no motion made to set aside the judgment.” And the Supreme Court of this territory, prior to the adoption of the Ohio code in this jurisdiction, decided the point in the same way, citing Ins. Co. v. Praggio, 16 Wall., 378, and Mitchell v. Anderson, 1 Hill (S. C.), 69. (McNamara v. O’Brien, 2 Wyo., 428.) These authorities are applicable to the case under consideration, and we think they are binding upon this court.
Counsel for defendants in error, however, referring to 8 Ency. PL & Pr., 287, and the cases there cited, maintain that the Supreme Court of the United States and the courts of twenty-four of the states establish a different rule. But this is a misconception of the decisions. It is true that matters occurring in the trial, not vital to the question of jurisdiction or the foundation of right and not in the record proper, will not be noticed by the reviewing court unless they are excepted to at the time and brought into the record by a bill of exceptions. They are presumed to have been waived. But error of a substantial kind, appearing upon the face of the record proper, is error in law and will be corrected by the reviewing court without any exception having been taken, and, of course, no bill of exceptions is necessary to bring such matters into the record. (Andrews Stephen’s Pleading, 204.) This principle is repeated over and over again by the Supreme Court of the United States. In Slacum v. Pomery,. 6 Cranch, 221, the court found that the omission of a certain averment was fatal to the declaration, and they say: “Had [8] this error been moved in arrest of judgment, it is presumable, the .judgment would hav.e been arrested; but.it is not too late to allege as error, in this court, a fault in the declaration, which ought to have prevented the rendition of a judgment in the court below.” In Bennett v. Butterworth, 11 How., 676, the verdict was held not to support the judgment, and the.court say: “As these errors are patent upon the record, they are open to revision here, without any motion in arrest of judgment or exception taken in the District Court.” (Suydam v. Williamson, 20 How., 433; Pomeroy v. Bank, 1 Wall., 600; Rogers v. Burlington, 3 Wall., 661; Thompson v. R. R. Co., 6 Wall., 137; Ky. Life Ins. Co. v. Hamilton, 63 Fed., 93.)
The rule is the same in all the states whose decisions we have. examined. ..In Pennsylvania it is said, “where the defect appears on the face of the declaration, it is the settled law that a court of error is bound, to notice it.” (Maher v. Ashmead, 30 Pa. St., 344; Fritz v. Hathaway, 135 Pa. St., 274.) In Michigan it is said: “When the only error alleged.is that the, finding of facts does not support the judgment rendered, no exceptions, are necessary, as the finding, itself becomes a part of the record, which thus presents the question as fully as it could be presented by exceptions.” (R. R. Co. v. Byerly, 13 Mich., 442; Trudo v. Anderson, 10 Mich., 365; Peck v. Bank, 51 Mich., 359.) The Missouri court say: “It is well settled in this state that this court will reverse a judgment obtained on a petition which fails tb state a cause of action, though no objection was, made, thereto in the lower court.” (State ex rel. v. Hoyt, 123 Mo., 357; Childs v. R. R., 117 Mo., 414.) And this is the established rule. (Thornton v. Brady, 100 N. C., 38; Koch v. Hubbard, 85 Ill., 53; Bissell v. City, 6 Tex., 54; Parker v. Bond, 5 Mont., 1; Holt v. Van Eps, 1 Dak., 206; Ford v. Booker, 53 Ind., 395; Evans v. Iglehart, 6 Gill, & J.; 199.) It is scarcely necessary to say that-when the pleading relied upon to support the judgment is a cross petition, or an answer in the mature of a cross-petition, the application of the principle is the same.
[9] The judgment will be reversed and vacated and the cause remanded for such. further proceedings in the court below as may be proper upon the record.
Reversed and remanded.
KNIGHT, J., and Potter, J., concur.