Upon Petition to Rehear.
By the Court:The specific ground upon which a rehear-
ing of this case is sought is because, it is said, the Traction Company was not called on in the first instance by the city to repave its portion of the streets. And granting that the company was under charter obligation to do such repaving, nevertheless until after notice it had refused to comply with such demand, the city had no authority to do the work at the company’s expense; and, therefore, could not maintain an action to recover the cost of the work done.
It is said that this proposition is so plainly correct that it is unanswerable; and complaint is made that it was not noticed in the opinion of the court.
The omission was not an inadvertence; the assignment was not discussed in the opinion simply because no such question was properly raised by the record, and it was, therefore, not within the cognizance of an appellate court. So far as the record discloses, no such defense was relied on in the trial court, and no exception was taken on that ground. If the question had been raised in the lower court, non constat but that the city could readily have proved notice and demand. The company “was silent when it should have spoken; and it will not be heard to speak when it should be silent,”
It affirmatively appears from the agreed statement of facts that “the question involved in this case is the liability of the Norfolk and Portsmouth Traction Company for the cost of the material used in laying wooden blocks on the portion of Granby street and Botetourt street lying *179between the tracks and two feet on each side thereof, in the year 1910, and for the cost of the material in an extra concrete foundation under the tracks.”
It is a fundamental rule of practice that “exceptions of every kind, when necessary at all, should be taken in the court whose judgment is to be reviewed. Otherwise the appellate court would be converted into one of original jurisdiction.” See note to Warren v. Warren, 2 Va. L. Reg. 195-6.
Burks, J., in Redd v. Supervisors, 31 Gratt. (72 Va.) 685, at p. 711, observes: “We can only review the case made and as made by the parties in the court below. We cannot go outside of the record and decide a case upon facts dehors. This would, in my judgment, be a palpable and flagrant abuse of appellate jurisdiction.”
So also in Gamden v. Doremus, 3 Howard 515, 11 L. Ed. 705, it was said: “It would be more extraordinary still if, under the mask of such an objection or mere hint at an objection, a party should be permitted in the appellate court to spring upon his adversary defects which it did not appear he ever relied on, and which, if they existed and had been openly and specifically alleged, might have been easily cured.” Warren v. Warren, 93 Va. 73, 24 S. E. 913; Lambert v. Jenkins, 112 Va. 376, 372, 71 S. E. 718.
Authorities could be multiplied upon this obvious and settled rule of appellate practice, but the foregoing sufficiently illustrate it.
It was upon these considerations that the court did not feel called upon to notice in its opinion the assignment to which attention is now invited.
Rehearing denied.