Dissenting Opinion of
Johnson, J.It is questionable whether we ought to consider this case on the statement at all, in the shape it is presented to us. The manner of preparing statements, and of transcripts on appeal, is so well defined by statute and rules of Court, as need excuse no attorney or clerk for bringing up a record in the shape we find this to be. We have defendant’s statement on motion for a new trial, and plaintiffs’ amendments thereto set out in different parts of the transcript.
As a fact, it 'does not appear of record that the statement was ever agreed to by counsel or settled by the Judge. But counsel for either party in their briefs agree in treating the original, with the proposed amendments of plaintiff, as the statement used in such motion. The appeal was not heard on oral argument, but was submitted on briefs by consent of counsel, so that the imperfections of the record were not disclosed to the view of the Court, until some time after its submission; otherwise I should have wanted the statement properly engrossed, so that we would not have to search out from the confused mass what in reality were the facts and questions arising upon the. trial and motion in the lower Court. Under the circumstances we must consider the statement in the same sense in which it was treated by counsel, notwithstanding it imposes on the Court a most ungracious task.
I agree with Justice Lewis, and upon that point he undoubtedly states the law correctly, that “ the answer was insufficient to admit of proof in justification of the acts of the officer in taking and detaining the chattels, provided the plaintiff had made the proper objections to it.”
The question then is, were these objections properly taken? There are two methods by which the sufficiency of the answer could have been tested: First, by demurrer, and second by properly objecting to the evidence offered by defendant. No demurrer was *554interposed; but on the trial when the proof was tendered, plaintiff made certain objections to their admission, which Justice Lewis understands to be, “ among other objections that the answer was not sufficient to authorize their introduction, because it did not show that the Justice loho issued the writ had authority to do so.
That part of the opinion I have quoted in italics is the only matter on which we differ materially, and as I view it, makes all possible difference; for if I consider them in the light which my associate does, I would not hesitate to concur in affirming the judgment of the lower Court.
Let us see what these objections really are, and whether they do in fact raise the question of the Justice’s authority to issue the writ. I quote from the transcript:
“ F. H. Burroughs was then called, and sworn as a witness on the part of the defendant, and testified substantially as follows : I am Justice of the Peace in and for this precinct. I have been ever since October, 1866. This is my docket as such Justice; these are the files of papers in my Court, in an action brought therein by one J. H. Sturtevant as plaintiff, against one J. W. Coffin as defendant. Defendant then offered the docket and files in evidence. Counsel for plaintiff objected on following grounds: First, the answer is insufficient to authorize the introduction of such papers; second, the docket offered is not kept according to the statutes ; third, the affidavit for publication is insufficient; fourth, that the original summons issued, notified the defendant to appear on the twelfth of November, a.d. 1866, and the published summons required the defendant to appear on the third of December thereafter ; fifth, the docket does not show on what day the summons and attachment was issued; sixth, the account shows that it was filed one day after the commencement of the suit; seventh, the affidavit of the printer of the publication of summons is insufficient; eighth, the affidavit on attachment, and justification of sureties on the undertaking for an attachment were not sworn to before any officer known to the law.
“ A copy of the entries in the said docket is hereto annexed marked “ Exhibit D,” also, a copy of bill of account of J. H. Sturtevant against J. W. Coffin .for the sum of two hundred and eighty-nine *555dollars and eighty-five cents is hereto annexed, marked “ Exhibit Ealso, copy of summons issued from Justice’s Court, P. H. Burroughs, Justice of the Peace in aforesaid action, J. H. Sturtevant v. J. W. Coffin, marked “ Exhibit P;” also, copy of affidavit for publication of summons marked “ Exhibit Galso, affidavit for writ of attachment marked “ Exhibit Halso, undertaking on said writ, marked “ Exhibit Kalso, writ of attachment marked “ Exhibit L,” all of which' are made part of this statement.
“ The counsel for defendant then offered to show by the oral testimony of the Justice, P. IT. Burroughs, that the bill aforesaid was actually filed with said Justice on the seventh day of November, instead of November 8th, as entered in his docket, and that said date was erroneously entered by mistake. The plaintiff by his counsel objects on the ground that such evidence is inadmissable to vacate, or disprove record evidence; objection sustained, and defendant by his counsel excepts ; defendant then withdraws offer of files of Justice in evidence, and offers first, writ of attachment “ Exhibit ITobjected by plaintiff’s counsel, because not shown to have been issued in action properly commenced, or by Court having jurisdiction; objection sustained, and defendant by his counsel excepts. Witness (Burroughs) then testifies: This is my docket, and the record of the case of Sturtevant v. Coffin is on pages 74 and 75. Witness is asked by defendant’s counsel: Is this a correct record of the proceedings in that case ? Plaintiff objects on the ground that a record is a verity, and no proof can be introduced to sustain it; objection sustained; defendant excepted.
“ C. A. Grannis was then called as a witness on the part of the defendant, and testified in substance as follows: On November 7th, 1866,1 was constable of this precinct, and acting as such, and this is my signature to the return on the writ of attachment. The writ was then offered in evidence; objected to by plaintiff: Birst, because there was no proof that the suit had been commenced; second, it is not shown that any complaint, bond, note, bill or account had been filed, or any affidavit or undertaking as required by law had been filed before said writ was issued, and enumerated all the objections anew that were made when these papers were offered in evidence ; and third, that the summons was defective on its face, in that it did not *556notify the defendant of the nature of the demand. The defendant then offered the Justice’s docket, and an account filed in the case of Sturtevant v. Coffin, the same as heretofore on this day offered in evidence and withdrawn by defendant. The plaintiff’s counsel objected to the introduction of said paper in evidence on all the grounds mentioned when they were first introduced, and also on the following additional grounds: First, that the docket had been changed since its withdrawal, this morning'; and second, that the date of the filing of the account had also been changed since the withdrawal. The Court sustained the objection, and defendant excepts, and plaintiff’s counsel offered to prove by other witnesses, that such changes above mentioned in, the Justice’s' docket and the filing of the account, were made after said papers were first introduced in evidence in this case and withdrawn.”
These portions of the transcript, copied from the statement as amended, give in full the objections taken at the trial by plaintiff; and certainly cannot be considered as covering the question now under consideration.
When the writ of attachment. was offered in evidence, if the plaintiff wished to object on the grounds that- “ the complaint did not show that the Justice who issued it had authority to do so,” the point of objection should have been particularly set forth, so that upon the objection stated the Court could act understandingly, and the opposite party be afforded an opportunity of curing the defect by an amendment to the answer.
As the matter is shown to us, if the.point was more fully stated to the Court or brought to the knowledge of the opposite party, it must have been on the argument of the objections, which is no part of the record here, nor was it in the lower Court sufficient to justify its ruling in rejecting the evidence.
In respect to such objections, our statute is explicit. (See Secs. 188-190, Practice Act.)
?£ To entitle an objection to notice,” says Justice Field, or the Court, ££ it must not only be on a material matter, affecting the substantial rights of the parties, but its point must be particularly stated. This is not only a statutory regulation, but it is the uniform rule, so far as we are aware of, in all the Courts of Record. The *557party, as the authorities say, must lay his finger on the point of his objection to the admission or exclusion of evidence.” (Kite v. Kimball, 10 Cal. 277, and affirmed in Martin v. Travers, 12 Cal. 244, and authorities there cited; Dreux v. Domac, 18 Cal. 83; Leet v. Wilson et al., 24 Cal. 398.)
Other questions are discussed by counsel in their briefs. Such as relate to the execution are not relied upon by counsel for appellant, and therefore are not before us.
As to the remaining points, perhaps it is not necessary to consider them in detail.
The District Court below in excluding the evidence offered by defendant, (I refer to proceedings under the attachment) was undoubtedly influenced by the same consideration which respondents’ counsel has urged here — that of the want of proper averments in the answer. Whilst apparently excluding it, some portions of this evidence were disallowed on other and distinct grounds, which are purely technical, and could not be sustained.
I think the order and judgment of the Court below should be reversed, and a new trial granted.