dissenting, says:
In this-case an action was brought, under the Code, to determine the right to the office of constable in Vaugine township, Jefferson county.
The suit seems to have been regularly brought; the partie* appeared in the circuit court and, by consent, went to trial before the court, sitting as a jury; both introduced evidence; the court found forthe appellee, and rendered judgment, ousting the •appellant from the office, etc. He excepted to the finding and judgment; tendered his bill of exceptions, which was made part of the record, and prayed an appeal to this court, -which was granted.
In our opinion, this brings the ease properly before this court for affirmance or reversal.
If the appellant has failed to show error in the court below, the judgment should be affirmed.
If a motion for a new trial must bo made in that court, before this court can consider any alleged error growing out of the evidence or instructions of the court, a party appealing without such motion, loses any advantage that he otherwise would have had upon a review of the evidence or instructions, and if the record shows no error outside of such exceptions, the record should at once be affirmed.
A litigant often takes all the necessary steps to bring his •case properly before the court for determination, and wholly fails to show any error in the record; his appeal is not, therefore, dismissed, but the judgment affirmed.
When an appeal is granted the whole record comes before the court. Suppose assumpsit should be brought upon an alleged promise to pay one thousand dollars for the murder of ten black men, and the defendant should set up that the plaintiff was to murder fifteen for that sum, and having killed but •ten no right of action had accrued, and should a trial be had, finding and judgment for $1,000 for the plaintiff, a bill of exceptions taken, setting out the evidence, a motion in arrest of judgment, and an appeal to this court, but no motion for a new trial, would this court, for that reason, not look to the other errors and illegalities upon the face of the record, and ■reverse without considering the evidence or instructions?
The errors of law appearing de hors, the evidence and instructions should be corrected. For want of the motion the appellant simply loses the benefit of his objections and exceptions, wherein such motion is required, and if there is no other error, as in the case under consideration, the judgment should be affirmed. If additional error appears it should be reversed. And if this court refuses to consider the record, simply because there was a bill of exceptions to the admission of evidence, and no motion for a new trial, then it can never discover whether there were other errors or not. If this court does go into the record to find whether or not such other errors exist, then it should-, by its judgment, announce that there is or is not error; that is, affirm or reverse.
It certainly cannot he earnestly contended that errors made to appear upon the record, by demurrer or otherwise, entirely disconnected with the evidence or instructions, cannot be corrected, because a litigant has set out a bill of exceptions, and made no motion for a new trial. The fact of losing the benefit of his exceptions, in these particulars, does not forfeit his right to have other errors considered, and if the court considers the record at all, to see if other errors are apparent, how is the world to know its conclusions, if the fact is not announced by affirming or reversing the judgment?
We hold that the juclg-mcnf shqujd, have, been affirmed.