On Petition for Rehearing.
Mr. Justice Gabbertdelivered the opinion of the court:
In support of the petition for rehearing it is urged that the report of the referee is a part of the record without being made so by bill of exceptions. Granting, for the sake of the argument, that this is correct, and referring to the report alone, it shows beyond dispute, from the testimony therein reported, that the judgment which it recommends is correct.
"Whatever may be the rule in other jurisdictions, we have universally held that an exception to a judgment is necessary to enable a review of the evidence for the purpose of ascertaining its sufficiency to sustain the judgment. No exception was taken to the report of the referee, nor the judgment confirming the report, nor to the order of the court denying a motion for a new trial; so that plaintiff in error is not in a position to have the evidence reviewed as reported by the referee, if it were here.
It is urged that the judgment is outside the issues. The action'was for a partnership accounting. *176The evidence was heard by the referee. He determined the state of the accounts between the parties and rendered judgment accordingly. This judgment is within the issues.
It is finally urged that the allegation in the answer that the firm was indebted to the defendant in a sum named was not denied. There was at least an attempt to deny it. If not sufficient, the question should have been raised before the referee or before the court at some stage of the proceeding. This was not done, and this court will not review a question of this character which the trial court was not requested to pass upon.
The petition for rehearing is denied.
Chief Justice Campbell and Mr. Justice Hill concur.
Decided March 6, 1911; rehearing denied April 3, 1911.