ther testimony, is not the subject of appeal before judg- CHAPTER VII. PROVISIONS RELATING TO TRIALS IN GENERAL. ARTICLE I. EXCEPTIONS. II. NEW TRIALS. ARTICLE I. EXCEPTIONS. SECTION 646. Exceptions may be taken. Time when taken, etc. 647. What deemed excepted to. 648. Exception, form of. 649. Exceptions signed by Judge and filed with Clerk. 651. Exceptions after judgment, etc. 652. When exception is refused, application to Supreme 653. Proceedings where Judge ceases to hold office. may be 646. Exceptions may be taken by either party to Exception any ruling or decision made by a Court or Judge, taken. either before or after judgment, in any action or pro- Time when ceeding, but, except in the cases provided for in the next section, must be taken at the time the ruling is made. NOTE.-See note to Sec. 661 of this Code. 1. WHEN AND HOW TAKEN.-To the rulings of a referee during the trial.-Tyson vs. Wells, 2 Cal., p. 122. To a deposition at the time it is offered in evidence.-Dye vs. Bailey, 2 Cal., p. 384. To the form of a deed at the trial in the Court below.-Posten vs. Rassette, 5 Cal., p. 468. To the introduction of evidence at the time it is offered.-Covillaud vs. Turner, 7 Cal., p. 38. A party cannot, by consenting to admit evi taken, etc. Gain 1875-6. dence, "subject to all legal exceptions," avoid the necessity of taking exceptions to the relevancy or sufficiency thereof, and devolve the responsibility of discovering whatever objections may exist in the Court below, and for the first time assign his objections in the Supreme Court.-Id. If a party objects to the admission of evidence on trial he must state the point of his objection at the time. General objection will not do. He must lay his finger on the point at the time of trial, otherwise the appellate Court cannot review it.-Martin vs. Traverse, 13 Cal., p. 243; Leet vs. Wilson, 24 Cal., p. 399; Baker vs. Joseph, 16 Cal., p. 177; People vs. Glenn, 10 Cal., p. 32. An objection to the sufficiency of evidence must be made at the time the evidence is offered to be introduced, so that a party may have the opportunity of supplying the necessary evidence.-Goodale vs. West, 5 Cal., p. 339; Mott vs. Smith, 16 Cal., p. 533. An objection to the admissibility of a deed in evidence must be made on the trial of the cause, at nisi prius, and an exception taken, or the point cannot be considered on appeal.— Pearson vs. Snodgrass, 5 Cal., p. 478. Where the objection to the introduction of testimony was in general terms that it was irrelevant, it will not be considered in the Supreme Court, if the testimony could under any possible circumstances have been relevant.-Dreux vs. Domec, 18 Cal., p. 83. The 188th section of the Practice Act did not fix the precise time when an exception to the charge of the Court to the jury must be taken.-St. John vs. Kidd, 26 Cal., p. 265. If under it an exception to the charge of the Court is taken after the jury have withdrawn to consider their verdict, and before the verdict is rendered, the question of allowing or disallowing the exception rests in the discretion of the Court, and whether allowed or disallowed, the Supreme Court will not interfere with the exercise of this discretion. A party cannot take his chances for a verdict on instructions given or refused without exceptions taken, and after the verdict, except to the action of the Court.-Letter vs. Putney, 7 Cal., p. 423. Exceptions to the charge of a Court must point out the specific portions of the charge excepted to, and ought to be made at the time of the trial, and before the jury retires.-Hicks vs. Coleman et al., 25 Cal., p. 123. 2. EXCEPTIONS BY PREVAILING PARTY.-Unless the respondent takes an appeal, the appellate Court will not look into exceptions taken by him.-Frank vs. Doane, 15 Cal., p. 304; Pierce vs. Jackson, 21 Cal., p. ར《་ ་་༴ ་༥༦、 1875-6. མ་་ ༡ ི མཔ་ དང ་ ་( Amended 1875-6. 636; Travers vs. Crane, 15 Cal., p. 12; Jackson vs. 3. TECHNICAL EXCEPTIONS.-If the judgment is deemed to. 647. The adverse party is deemed to have excepted What to the verdict of the jury, or the final decision of the excepted Court or referee, to an order granting or refusing a new trial, sustaining or overruling a demurrer, striking out a pleading or any part thereof, granting or refusing a continuance, granting or refusing to change the place of trial; and is also deemed to have excepted to every order, ruling, or proceeding made or had in the action or proceeding, either before or after judgment, upon an ex parte application. NOTE. The verdict, decision, order, or ruling in the instances specified in this section, may be rendered or had in the absence of the losing party, and it was for this reason that provision was made giving him an exception by operation of law. form of. 648. (§ 190.) No particular form of exception is Exception, required. The objection must be stated, with so much of the evidence or other matter as is necessary to explain it, and no more. But when the exception is to the verdict or decision, upon the grounds of the insufficiency of the evidence to sustain it, the objection must specify the particulars in which such evidence is alleged to be insufficient. NOTE.-1. FORM OF EXCEPTION.-See Subdivision 1 of note to Section 646 of this Code. 2. OBJECT OF THE BILL OF EXCEPTIONS.-Parsons vs. Davis, 3 Cal., p. 425. 3. WHAT IT SHOULD CONTAIN.-Not matter of record.-Johnson vs. Sepulveda, 5 Cal., p. 151. But must contain documents and affidavits, to be reviewed by the appellate Court.-Gates vs. Buckingham, 4 Cal., p. 286. And affidavits as to the incompetency of a juror.-People vs. Stonecifer, 6 Cal., p. 411. 4. RESERVING QUESTIONS OF LAW.-Where the Amseded. Amended Amended 1875= Exceptions filed with Court tries the cause without a jury, the mode of* reserving questions of law is to ask the Court to decide them, and note the decision in a bill of exceptions.Griswold vs. Sharpe, 2 Cal., p. 17. Where plaintiffs, having excepted to the ruling of the Court excluding certain evidence, take a nonsuit with leave to move to set aside, they do not waive any of their rights as to the exceptions.-Natoma W. & M. Co. vs. Clarkin, 14 Cal., p. 549. 5. EXCEPTIONS TO BE ATTACHED TO JUDGMENT ROLL.-Moore vs. Del Valle, 28 Cal., p. 170. 649. A bill containing the exception to any ruling Judge and may be presented to the Judge at the time the ruling is made. It must be conformable to the truth, or be at the time corrected until it is so, and signed by the Judge, and filed with the Clerk. • Exceptions not presented ruling. 650. If a bill is not presented at the time of the ruling, a bill containing the exceptions, or any of them, relating to any ruling had up to the time of the entry of judgment, may, upon one day's notice to the adverse party, at any time after such ruling is made, and party, how within thirty days after the entry of judgment, be presented to the Judge and settled, as provided in the preceding section. Notice to settled Exceptions ment, etc. When is refused, application Court to 651. A bill containing the exceptions to any ruling made after judgment, except to a ruling made granting or refusing a new trial, may be presented to the Judge at the time of such ruling, and be settled as provided in Section 649; and, if not so presented, may, upon one day's notice, and at any time after, and within ten days of, such ruling, be presented and settled as in such section provided. 652. If the Judge in any case refuse to allow an exception in accordance with the facts, the party to Supremo desiring the bill settled may apply by petition to the Supreme Court to prove the same. The application may be made in the mode and manner, and under such regulations as that Court may prescribe; and the same, etc Amurche &1875-6. bill, when proven, must be certified by the Chief Justice as correct, and filed with the Clerk of the Court in which the action was tried, and when so filed it has the same force and effect as if settled by the Judge who tried the cause. NOTE.-See note to Article II. 653. If the Judge who presided at the trial ceases to hold office before the bill is tendered or settled, he may, nevertheless, settle such bill, or the party may, as provided in the preceding section, apply to the Supreme Court to prove the same. Proceed- ings where ceases to ARTICLE II. NEW TRIALS. SECTION 656. New trial defined. 657. When a new trial may be granted. 658. On what papers moved for. 659. Notice of motion, upon whom served and what to con- 660. Motion to be heard at the time specified, or dismissed. defined. 656. (§ 192.) A new trial is a reëxamination of New trial an issue of fact in the same Court after a trial and decision by a jury or Court, or by referees. 657. (§ 193.) The former verdict or other decision may be vacated and a new trial granted, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: 1. Irregularity in the proceedings of the Court, jury, or adverse party, or any order of the Court or abuse of discretion by which either party was prevented from having a fair trial; 2. Misconduct of the jury; and whenever any one 72-VOL. I. When a new trial granted. |