(dissenting).
I am unable to agree with the judgment and opinion in this case, because the court, as the opinion states, feels itself constrained to remain consistent with its decision in Darby v. Montgomery County Nat. Bank, 63 App. D. C. 313, 72 F.(2d) 181; and there are other compelling reasons for dissent.
Although the case presents a new and important question respecting group insurance, and thereby touching the interest of many persons, the court declines to consider the merits of the cause, but disposes of it on a detail of procedure based on the omission of counsel to recite all of a rhetorical ritual when taking his appeal.
The important question on the merits is whether a period of grace admitted to exist under a policy of insurance issued to a group, and admitted to apply to the group policy on the day in question, also applied to a personal policy of an individual member of the group who had obtained it under an option opened to him by the group policy, and who had died during the period of grace.
The issuance of the individual policy; the amount thereof; the beneficiary thereunder; the death of the person assured; and the date of death within the period of grace; were all stipulated by the parties; the only issue between them being the legal question whether the grace extended to the separate policy so issued to the individual member of the group. The parties having further agreed to waive trial by jury, the matter was submitted to the judge alone upon the pleadings, the stipulation of facts, and certain documentary exhibits, all of which are here in the record. The judge thereupon decided the question in favor of the beneficiary under the individual policy for the full amount thereof; whereupon counsel for defendant in open court waived the right of moving for a new trial; consented that judgment might be entered immediately; noted an appeal from that judgment to this court; asked to have a supersedeas bond fixed; which was done, and given.
But when the counsel took his appeal from the judgment against him, he did not say that he excepted to the ruling contain,ed in the judgment, and the decision of this court is now based on that omission. Yet all the rights of all the parties at the trial were protected, and all questions presented *1009there are presented here, for we have the entire judgment roll, with all pleadings, exhibits, stipulations, and minute entries.
The question of law presented by the parties and decided by the judge might as well have been presented and decided on demurrer, when the record would have been obviously sufficient for review here. Dr if the losing counsel, when he said that he took his appeal from the judgment, had also said that he took an exception to the ruling contained in the judgment, and had brought both those phrases here, we would listen to no such objections of procedure as now control our judgment.
But because he did not make two bites of the cherry there, his case may not be considered here.
I cannot think that such a practice, or that our judgment in this case, is within the spirit of the act of Congress which requires that: “On the hearing of any appeal * * * in any case, civil or criminal, the court shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties.” Act Feb. 26, 1919 (28 USCA § 391). But, in my opinion, when the losing counsel in the trial court eo instante upon the pronouncement of judgment, waived all rights to further proceedings there, appealed to this court, and gave a supersedeas bond greater than the amount of the judgment, he necessarily and inevitably excepted to the only ruling made in the cause, which is here presented for our review.
A man may be properly convicted of murder, and properly hanged for it, even though he omits to say to his victim while cutting his throat, “I hereby kill you.” And so, as I think, an appeal may be sufficiently taken, by certain procedures in certain cases, which preserve all the rights litigated in the trial court, and present all the questions involved to the appellate court, even though the word exception is never mentioned in either tribunal.
To hold otherwise seems to me an unnecessary descent into an unreasonable formalism.
As we said in Evans v. Humphreys, 9 App. D. C. 392, and again in Saks v. B. II. Stinemetz & Son Co., 54 App. D. C. 38, 40, “since the questions involved sufficiently appear from the pleadings and proceedings of record, a bill of exceptions was unnecessary.”
In this case the real question at issue appears clearly enough in the record and it has been presented by oral argument and printed brief; and I think it should be considered and decided by the court.
The views here expressed are thought to be supported by the following cases: Wilkins & Co. v. Hillman, 8 App. D. C. 469; U. S. v. Cleage (C. C. A.) 161 F. 85; Blair v. U. S. (C. C. A.) 241 F. 217; Baltimore & Potomac Railroad v. Trustees Sixth Presby. Church, 91 U. S. 127, 23 L. Ed. 260; Bennett v. Butterworth, 11 How. 669, 13 L. Ed. 859; Young v. Martin, 8 Wall. 354, 357, 19 L. Ed. 418; Clinton v. Missouri Pacific Railway, 122 U. S. 469, 474, 7 S. Ct. 1268, 30 L. Ed. 1214; Moline Plow Co. v. Webb, 141 U. S. 616, 623, 12 S. Ct. 100, 35 L. Ed. 879.
VAN ORSDEL, Associate Justice, concurs in this dissent.