(dissenting).
In concurring In Justice VAN ORSDEI/S dissenting opinion, I venture to add a word of my own based on a long experience in the trial court as attorney and judge.
I think it clear from the colloquy between the trial judge and counsel at the time judgment was rendered that this case took a course familiar enough in similar matters, and which was at the time considered by both the court and counsel to furnish a sufficient basis for review of the proceeding on appeal. The main purpose of waiving trial by jury is to get the greater speed and informality of procedure which the absence of a jury permits, and this, rightly or wrongly, is commonly deemed desirable by court and counsel. When the judge said, “I find for the plaintiff, in the sum of the amount of this note with interest from date,” he made a special finding on the only issue before him, which was recorded, and to which his judgment gave due effect.
Thereupon counsel said, “We note an appeal, of course.”
The Court: “I believe the proper practice is to file a motion for a new trial.”
Counsel: “Under the circumstances I thought it was perhaps useless” — which it certainly was.
The Court: “Then you want judgment to be entered forthwith and appeal noted.”
Counsel: “Yes.”
In my opinion this procedure, while open to criticism as loose and informal, covered the necessary ground and was recognized and accepted as doing so by court and counsel. Por it is beyond question that the judge considered that he had then disposed of all questions of fact and law submitted to him, and that he intended to allow the losing party an appeal from his decision. It is equally beyond question that the record filed here in pursuance of that appeal contains sufficient material to review the matter on its merits, but *187the opinion of the court holds that this cannot be done because it was not sanctified by the proper rhetorical ritual. And this because the counsel did not say “I except” before he said “I appeal,” though it was clearly intended and understood at the time by the judge and the counsel that the appeal so taken necessarily included an exception to the judgment so announced, as the greater includes the less.
If counsel, instead of taking his appeal from the finding and j udgment as announced, had made certain formal but futile and unnecessary motions, and had then proclaimed an exception to their denial, his appeal from a repetition of the judge’s announcement — -or from a nod of the judge’s head, which is probably all that he would have got — must have brought a reversal here instead of an affirmance.
This is putting too high a value on making two bites of a cherry. And the denial of a review here of a judgment acknowledged to bo wrong here, because the trial court and counsel, in a. common effort to dispatch business, omitted a futile formula of words, is to sacrifice the substance of justice to the shadow. I dissent from the judgment and opinion of the court.