Specially Concurring. — The appellant prematurely filed a motion for a new trial. Because the motion was filed at that stage of the proceedings (that is, before a judgment was rendered in the ease upon which to operate), the motion was ineffective to call forth the jurisdiction of the court to determine the questions triable upon the hearing of a motion for a new trial. Until judgment was rendered, the parties could not anticipate what that judgment would be, but they must presume that the law would dictate a proper judgment. Until an improper or erroneous judgment was rendered, no grounds for a motion for a new trial existed. Therefore a motion for a new trial, made before judgment rendered, had nothing upon which to operate, and was ineffective for any purpose.
The scope of the review by this court extended to and was limited by the judgment-roll. I do not concur in the apparent holding of the majority opinion, to the effect that under paragraph 1231 of the Civil Code of 1913, this court is required or empowered to review all matters transpiring at the trial when such matters have been assigned as error. Paragraph 1231, supra, is as follows:
“Upon appeal from a final judgment the court shall review all orders and rulings made by the court below, which are assigned as error, whether a motion for a new trial is made or not. If a motion for a new trial is made and denied, the court may, on appeal from the final judgment, review the action of the court below in denying the motion, though no appeal be taken from the order denying the motion for a new trial: Provided, that on appeal from a final judgment the supreme court shall not consider the sufficiency of the evidence to sustain a verdict or judgment in an action tried before a jury unless a motion for a new trial shall have been made.”
If, as clearly indicated by the statute, the court may review the order of the lower court refusing a new trial only when a motion for a new trial has been made and denied, then it follows that, when no motion for a new trial was made, the court has no. power to review the grounds for a new trial.
The matters of admission and rejection of evidence and the giving and refusal of instructions, and the conduct of the judge of the court upon the trial, are assignable as grounds for a new trial, and properly reviewable by the trial court *74upon the hearing of the motion. A failure of a party to present such questions to the trial court by a timely motion has always been considered a waiver of error, if any. The waiver is complete when the time for making the motion expires, and no motion is made, or the particular ground is not alleged. In my opinion the matters of admitting and rejecting evidence, giving and refusing instructions, and the conduct of the judges of the court, are not such orders and rulings made by the court below as, contemplated by the statute, could be reviewed on appeal, when assigned as error, whether a motion for a new trial was made or not. If they are considered such, then the result is that the parties may apparently waive them as to the court below by making no motion for a new trial, but on appeal they may be revivified by assigning them as error, and therefore this court must review them as if reviewing a motion for a new trial, not in an appellate capacity, but acting as a court of the first instance. The questions raised have never theretofore been presented to any court. No other court has had the opportunity to pass upon them, and they, for the first time, are raised in an appellate court, which is clearly .contrary to the purposes of this court. I am clearly of opinion that an appellant must present to this court for review a record fairly showing matters not waived, but live, contested matters, otherwise this court has no authority to consider them. This view is borne out by the statute itself. The sufficiency of the evidence to sustain a verdict or judgment is neither an order nor a ruling; yet it is a ground for a new trial the same as the question of jurisdiction of the court. When the cause is tried to a jury, even the question of the sufficiency of the evidence to sustain the verdict or judgment cannot be reviewed, even when assigned as error, unless a motion for a new trial has been made and refused. It is not the assignment of error alone that gives the court the power to review, but also, the matters controverted, the issues between the parties must exist as the subject matter of review, and the assignment is the authorized vehicle to deliver the subject matter upon which the court acts. The subject matter thereby delivered must be alive, not dead, and matters which have once been waived, as they undoubtedly have been in this record, are dead, and they may not be resuscitated merely *75by presenting 'the vehicle upon which they might have approached while living.
For the reason no reversible error appears upon the judgment-roll, I concur in the order affirming the judgment.