— (concurring).—A common-law writ of certiorari is not a writ of right nnless made so by statute. It does not appear that the Court of Appeals in the instant case has overruled or qualified any decision of this court, or that the petition presents such a case as demands, at the hands of this court, the granting of the writ of certiorari.
When an appellate court declares that a particular record does not present to it a certain question for review, that declaration of the appellate court is not, in my opinion, a finding of fact, but is a mere declaration of the l(m as applied to the particular record. The question as to whether a point has been properly raised for the consideration of an appellate court is a question of legal procedure merely, and the solution of that question depends upon the recitals of the record. The question as to whether a particular complaint or plea is or is not subject to certain grounds of demurrer is determined by the recitals of the complaint or plea, but the question so presented is a question of law. And so, the question as to whether a particular ruling of a trial court is properly presented to an appellate court for review is determined by the recitals of the record, but the question so presented is a question, not of fact, but of law.
I concur in the conclusion reached by the majority of this court in the above case, but do not concur in that part of the opinion which states that “the holding of the C'onrt of Appeals that the record failed to disclose an exception to the ruling of the trial court in overruling objections as to certain parts of the evidence of Tom Dye was a finding upon facts.”