Lee v. Marsh

The record in this case shows, that on the trial, the counsel for the defendant made demand, in accordance with the statute, that the Circuit Judge should make a special finding upon certain law points, which were enumerated by the counsel in making his demand, and which would necessarily require of the Judge; that he should make such a finding of facts as would properly present the law points. By this demand, he became entitled of right to have such a finding, and it was error in the Gourt not to make it.

It is objected, however, that the defendant below did not put himself in position to complain of this error, inasmuch as no exception was taken to the action of the Court. But it is apparent that, if this error can only be examined on exceptions, it will be impossible for the party complaining of it to take advantage of it at all. The error is not committed until a final judgment is entered without such *13a finding; but an exception, if requisite, it would seem should precede the judgment and be based upon a refusal of the Court to make the finding requested. It would seem therefore, that the party has had no opportunity to except’ until it is too late. But conceding that exceptions at the time the judgment is entered would not be too late, practically the party is precluded from taking them in these cases, from the fact that he is not required or expected to be necessarily present when the judge decides the cause. When the cause is submitted to the Judge sitting in place of a jury, the counsel has discharged his duty when he has argued the case and made his demand for a finding in due form. He is under no obligation to be present at his peril at all times thereafter, lest the Judge may. enter judgment in his absence, and thereby deprive him of legal rights. He has a right to repose upon the legal presumption that the Judge will comply with the statute and make the proper finding. The law will not require of a party to do that which is practically impossible in order to protect himself in this right. Where the record shows that a special finding has been required by a proper demand, and no special finding whatever has been made, we think we have no alternative but to reverse a judgment and order a new trial.

Ordered accordingly.