ON REHEARING.
Per CURIAM.Since announcing the opinion in this case, the appellants, by their counsel, submitted a petition for a rehearing, and we were referred to additional authorities bearing upon the questions decided. After a further examination, we concede that, independent of the decisions already made, the principal question decided in this case — namely, that the order overruling the demurrer, and the exception thereto, should have been incorporated into a bill of exceptions to be available— would not be entirely free from doubt. The legislature may have intended that on appeal from a judgment everything in a transcript which belongs to or constitutes the judgment-roll should be considered by the appellate court in reviewing the action of the trial court, whether there is a formal bill of exceptions or not; but the statute does not say so. The authorities we find which have interpreted our statute are against the construction contended for by the appellant’s counsel. Section 403 of our Civil Code corresponds to section 647 of the California Practice Act. In Nash v. Harris, 57 Cal. 242, 243, a construction was given to this section. The court say: “When the motion was argued and decided in the lower court, the attorney of the appellant was present, and reserved no exception to the decision of the court.” But, according to section 647 of the Code, of Civil Procedure, an appealable order “is deemed to have been excepted to.” Yet a party who has excepted to a decision of a court, whether he excepted in person at the time the decision was made, or is deemed in law to have excepted, must, in statutory or reasonable time after his exception, avail himself of the right to reduce the same to writing, and take the steps required by law to have the bill of exceptions settled and signed by the judge.”
*101In this territory the question seems to have just arisen in Ainslie v. Printing Co., 1 Idaho, 641. In this case the court held that the verdict of the jury, although “deemed to have been excepted to,” should have been incorporated into a bill of exceptions to make it available as an exception. In Fox v. West, 1 Idaho, 782, the question in another form was again raised, considered by the court, and the same conclusion reached as in tbe former ease. This construction does not seem unreasonable. In those cases in which the statute requires the party to except, if he desires the question reviewed, the exception so taken will be unavailable unless incorporated into a bill of exceptions, and thus made a part of the judgment-roll; and we think, in those cases where the statute saves the exception for the party against whom the ruling is made, that unless the ruling and exception are, within the statutory time, preserved by bill of exceptions, the question • should thereafter be deemed waived. (See Grazidal v. Bastanchure, 47 Cal. 167.) Under this construction of the statute a rule of practice has been established, and in the face of these authorities we do not feel warranted in attempting to change it.
Behearing denied.
Morgan, C. J., and Broderick and Buck, JJ., concurring.