delivered the opinion of the court on the petition for a rehearing,
MoBride, C. J., concurring.Appellants file their petition for a rehearing of this cause, assigning several reasons therefor, the most material among which are: The only object of-an exception is to bring up the record, and that in this case there was no reason for an exception; and, further, that exceptions are unauthorized by law in a case where judgment is rendered without atrial. There are several other grounds contained in the petition, but it is unnecessary to pass upon them in detail.
It was contended by appellant’s counsel upon the argument that a motion made and an order of the court entered upon such motion, but which was not made during the progress of the trial of the cause, either before a jury or by the court, were parts of the record, and for that reason the ruling or decision of the court need not be excepted to or included in a bill of exceptions; that the transcript in such a case would be sufficient to call upon this court to review the action of the inferior court, even though no exceptions to the rulings of such court were taken unless they occurred during the trial of issues of fact.
While it may be true that motions and orders of judgments of the court thereon become parts of the judgment roll, yet it does not necessarily follow that this is always *126sufficient upon which to assign as error in the appellate court such judgments or orders. The case of Smith v. Curtis, referred to in our former opinion, but which counsel insisted was inapplicable to the point at issue, is an authority clearly sustaining the rule we have already laid down. This case was this: One of the defendants, Ourtis, after there had been a judgment by default taken against all the defendants, moved the court to quash the execution and set aside the judgment, which motion was overruled. The case was, after some other proceedings, appealed to the supreme court. And in relation to the order denying the motion referred to, the court held this language: “No exceptions having been taken to the order of the court below overruling the motion to set aside the judgment and quash the execution, the action of the court can not be reviewed here.” Again, in the case of the Rogue River Mining Co. v. Walker, 1 Or. 341, the supreme court of that state say: “TVe do not propose to examine the merits of these proceedings of the court below, for the reason that the four errors, if errors at all, were waived; for, being acquiesced in by the defendant in the court below, and not excepted to, any supposed irregularity in these respects was waived, and can not now be taken advantage of.” One of the alleged irregularities referred to by the court and assigned as error, was the order of the inferior court refusing to allow one of the defendants to file a separate answer containing matter omitted in a former answer by the other defendant, but which order was not excepted to at the time. To the same effect is the case of Scott v. Cook, 1 Or. 23; Davis v. Davis, 8 Mo. 56; Howell v. Pitman, 5 Id. 246. Thus we see that the doctrine contended for is not only not supported by authority, but is directly contradicted by it.
There is no rule of practice or principle governing legal proceedings more clearly defined or better settled than that any objections, of whatever character, whether with reference to the regularity of the proceedings on the trial of a cause, or to error of law committed by the judge in relation to a motion, or of any ruling whatever on a question of law arising during the proceedings, must be taken at *127once, at tbe time when tbe question arises, in order that tbe adverse party may bave tbe opportunity of remedying the d elect. If this necessary precaution be omitted or neglected, tbe objection, notwithstanding it may bave been well founded, will be deemed waived and can not afterwards be raised, either on motion for a new trial or in tbe appellate court. There are a few exceptions to this general rule which are enumerated in our former opinion, and therefore need not be here repeated.
It was further argued that under section 191 of our civil practice act, exceptions could not be taken except upon the trial of the cause upon its merits; that the hearing and disposing of motions and demurrers before the cause is called for trial on issues of fact, or of motions after the rendition of judgment, are not contemplated under the rule requiring exceptions to be taken at the time the order or decision is made. There may be two answers to this argument. In the first place there is nothing in tbe section referred to prohibiting the adoption of such a rule by an appellate court for the purpose, as before observed, of affording the adverse party an opportunity of obviating any objections, while the cause is yet in the court below.
But, secondly, the code has denominated the hearing and 'disposing of questions or issues of law, trials. Thus in chapter 3 of the practice act it is declared that 5‘an issue arises when a fact or conclusion of law is maintained by the one party and controverted by the other. That there are two kinds, one of law, the other of fact.” Then, after pointing out how they arise, it is provided in section 154 that issues of law shall be tried by the court, unless referred by consent as provided in section 182. At common law, by a trial was generally undertood the examination of issues of fact. (2 Bl. 256.) But under the code this definition has been extended so as to include the determination of issues of law as well. It is also well understood that issues both of law and fact must be determined by the court, either with or without the assistance of a jury or referee, as the case may require, and not by the judge, except in a few enumerated cases. If this be correct, then section 191 is *128not susceptible of the construction claimed for it. But that whenever a cause is called to dispose of any issue, whether of law or fact, it is, in contemplation of that section, called for trial, so far at least as to require all rulings of the court, which it is desired to have reviewed in an appellate court, incorporated into a bill of exceptions.
While the motion made in the court below in this cause may be treated .as a demurrer, so far as it raises the question of the legal sufficiency of the facts stated to entitle the relator to the writ of mandate, it is nevertheless a motion interposed for the purpose of quashing the writ. And, under the well-established principle that a party must except to the ruling or order of the court at the time it is made, to entitle him to - call upon an appellate tribunal to review such ruling or order, the appellant, not having done so in the case at bar, is deemed to have waived his right now to assign the same as error. We will, therefore, only so far look into the record, as has already been said, that we may ascertain whether a prima facie case has been made out sufficient to support a judgment, which being the case here, such judgment of the court below can not be disturbed.
We have thus carefully examined all the material points made by the petition, and see no cause for changing our former judgment, or reason to believe that we then committed any error to the prejudice of the petitioner, but are more fully satisfied that the exposition of the law we then made is correct and ought to be adhered to.
Petition for rehearing denied.