
    Rindskoff Bros. & Co. v. Lyman, Sheriff.
    I. Per Curiam :
    -1. Motion for:new trial: chance'ry; cause's.' A’motion for a new trial is ■■ not necessary.in Chancery cases tried.by the first method; or when-the , appeal is from- order'of - the court, duly excepted .to at.the time, and from which the Revision allows an appeal to be taken.
    2. Chattel -mortgage : risht of possession. When the mortgagor of chattels is in possession, and has the right to the possession'of the mortgaged ' • property for a definite period, Ms interest, prior-to the expiration of such I period,-is the subjectof levy and’ sale. ’ Aliter when the: mortgagee -may , take possession at his-pleasure,‘or when the mortgagpr's.-right of- possession is for no definite time. .
    II. Dillon, J.; Wright, Ck. J., concurring: -
    1„ Practice^ motion for new trial. All errors occurring at the trial -of .a .case at law should be regarded as waived, if not embodied .in a motion for- a new trial. .....■ .........
    
      III. Lowe and Cole, J. J.:
    1. Same. When proper exceptions are taken to the rulings .of the. court, below, on which such errors arise, a motion for a new trial is not. necessary to have the same reviewed in the Supreme Court (following McCoy' V. Julien, 15 Iowa, 311).
    
      Appeal from Lucas District Court.
    
    Tuesday, June 7.
    The plaintiffs filed, June 2d, 1862,- their petition inreplevin, claiming certain personal property, by virtue of-a recorded mortgage thereof, made by one Gibbon, dated1 March 12th, 1862. Defendant, as sheriff, claimed the property, by virtue of levies under executions against Gibbon. The plaintiffs’ mortgage contained, inter-alia, a provision giving Gibbon (the mortgagor) “the possession of the1 said' property- until the first day of June, 1864.” Jury trial. A bill of exceptions shows that certain instructions.'asked by' plaintiffs were-refused, to which they duly excepted. At the defendant’s instance, the Court charged that “ the said mortgage does not give the plaintiffs the right of possession, and the-jury must find for the defendants.” ;
    • To the giving of this and other similar instructions the plaintiffs excepted :at the time. Verdict for defendant.-' The plaintiffs made- no motion for a new trial, and judgment, without objection on their part, so far. as shown-by-the record, was rendered for the defendant on the verdict.'- . Plaintiffs appeal, and assign for error the refusal to give their instructions, and the giving of those prayed by the defendant. ■’
    
      James Baker for appellants.
    
      T. B. Perry and T. M. Stewart for appellee.
   Dillon, J.

I. From the brief statement of the case' above given,-it will be seen that the question on the merits1 is an interesting, and so far as we are aware, is in this State an undecided one. But it is the first duty of this Court to' see whether this question is duly and properly presented to it by the record.

The appellants excepted to the alleged erroneous instructions at the time, and now the precise question is, can this Court review those instructions, they never having been made the basis of an application for a new trial in the court which gave them? This question must be answered by a careful collation and view of the several statutory- provisions touching the matter of Exceptions,Practice and New Trials.

Section 3051, et seq., of the Revision, relates to instructions. The charge of the Court, and the giving or the refusal to give instructions, must be. excepted to at the time, or they will be deemed approved. Rev., §§ 3055, 3059, 3109.

Section 3106 and the following sections relate to the subject of Exceptions. They provide generally as to when exceptions shall be taken’, how taken, and when, and in what cases the ground of objections must be stated.

Immediately following the provisions for Exceptions are those relating to New Trials. (Rev., § 3112.) This section provides that a new trial may be granted for any of the enumerated causes, and specifies eight distinct grounds or classes of causes:

“ 1st. Irregularity in the proceedings of the Court, jury, &'a, or any other order of Court, &c., by which the party was prevented from having a fair trial. * * * * *

“8th. Error of law occurring at the trial, excepted to by the party making the application.”

Other sections provide how and when the application for a new trial must be made.

, Now, on familiar and well settled canons of interpretation, each of these provisions is to be construed in the light of the others, and if' it can be reasonably done, all. are to have effect and operation.

Taking all these sections together, it seems clear, that, to enable an unsuccessful party to obtain a reversal of a. judgment in consequence of misdirection to the jury, he must pursue the following course:

1st. He must except to the instruction or charge at the time it is given or before the jury retire (Rev., §§ 3055, 3059, 3109); and such, in fact, has always been the law and practice in this State. Rawlins v. Tucker, 3 Iowa, 213. And, 2d. He must apply for a new trial, and his ground therefor, in cases of misdirection, would be subdivision 8 of § 3112, and if his application is denied, he must again except

This view is sustained by many and good reasons. If a. motion for a new trial is made, the District Court has, what it probably did not have on the trial — opportunity for examination, and time for reflection. If, in the hurry and press and excitement of a trial, the Court has made, as all courts, no matter how learned and experienced the judge may be,, are liable to make, a hasty and untenable decision, an application for a new trial gives to that Court (and this, we take it, is the primary function and chief purpose of the. application) an .immediate opportunity, while the record and the cause are under its control, to correct its own errors, and thus obviate the necessity for, as well as the. delay, inconvenience and expense of, an appeal.

Whatever exceptions may have been taken, and preserved during the trial, without a motion for a new trial, the Court cannot be informed that the party is dissatisfied with the final result Let us illustrate this point. A. brings suit, claiming one thousand dollars. During the trial the Court decides some point against him, and signs, at the time, a bill of exceptions. He, nevertheless, obtains a verdict for five hundred dollars. May not the Court justly conclude thát he is-satisfied with the’result, if he. does not move for a new trial ? And can’be have the appellate court reverse'the judgment 'on the bill' of'exceptions taken in the course of the-triab?: Clearly not.-" Again, without a-motion-fora new trial, the District-Court, though convinced of its error, is practically - deprived of the power of cor*' iecting it.

-'This'view, moreover;''accords with the spirit'and- policy though perhaps it is dot-within -the -letter- of'.Other pro-' visions of 'the Code. Thus, by § 3545 it is' declared that “a‘ judgment or order Shall not be' reversed for an-error which can be-corrécted ' on' motion -in the- inferior - court, until such motion has-been-made there and overruled.”

It also accords with the general conviction of the pro-fession,-a's evidenced by, so fa'r as we know, their uniform practice, -in ihe courts;' Coinciding with and -fully supporting these'views, see Hoersh v. Bank, &c., 10 Mo., 516; and Higgins v. Breen, 9 Id., 493.

These'reasons'carry’with them such-inherent and irre-' sistible force, that’ifrwoüld seem scarcely necessary to call to their aid the support of authority; And yet, as illustrating this and kindred points of practice,'.it- may be" well, for a few moments; to examine the question-in' that light-. " We refer/first/to the Indiana-cases. ' By'an examination of .sections 342, 343, et.seg.,-of the Code of-Practice of that' .State, on the’subject-of exceptions, • they will be found, almost literally, like section 3106,-eí sey; of the'Revision. - So,- also/ section' 352 ■ of -the Indiana- Code on the subject of New Trials; is literally like section 31-12 of our Revision.-

Thé-decisions there; • then,- are directly and pointedly applicable here. In Kent v. Lawson, 12 Ind, 675, the Supreme Court say: “ The- overruling of -a motion for a continuance of-a Cause is clearly within -the first specification of the above section” (section 352 being same as the first specification under section ‘31-12 of the Iowa Revision)/ “and perhaps'Within some,of the others;” and.it was held, that it could not be considered by the appellate court,unless it-was• embraced -in a motion for a--new trial; In.: giving the5 opinion of the Court, Mr.-Justice Perkins. remarks “-Errors, in rejecting proper, or giving to-the.jury.; improper- testimony, 'or.in giving to the jury improper charges, or refusing, proper charges,- are clearly within the eighth; specification”, (corresponding to- specification 8-of section: 311-2 of the Revision), “ while: errors--committed by-the‘ Court, in-reference -to the validity-of pleadings, are not-w-ithin the section at all” 12. Ind., p. 677. ■ And the-Court-in the same case lay down-.this general.-ruleThat-any matter for-which a-new-trial, may- be granted, is:waived,by the neglect-of the party to move for-a-new trial.” • ; .

There are many cases-to-the-same effect, - and- the courts-in that' State -go-so far as 'to hold -that a -motion for >a new trial in -addition-to-exceptions; is as-essential where the:trial is by the Court as where it is.by the jury. Without quoting,-, we-refer to Stump v. Fraley, 7 Ind; 679; Doe. v. Herr, Id., 23, 24; Id., 96; Snodgrass v. Hunt, 15. Id., 274; Hindman v. Troxell, Id., 123.

-- We- next refer to ¡the Kentucky' cases.--. .Our -Revision as to exceptions-and--new trialsus almost a'literal copy of', the Code of -that-State. (See Stanton’s Ky. Code, pp. 173, 175.) Section 363 of the Code of that State, defines an, exception the same as our Code does;¡ and §, 364 declares that-“ the-party objecting to. the decision,'must-except at; the time the decision is made,” &c., and § 369,. in relation, to new trials, is word for word the same as-§ 3112 of the-. Revision’.. In Letton v. Young, 2 Met. (Ky.), 564, the'Court of Appeals say: “Errors of the Court, in granting.or refus-, ing instructions, ■ are ‘ errors of law .occurring at the trial,?, and obviously-within the letter and intent of the provisions; of the Code, supra.”- (Sec. 379, subd. 8, corresponding to subd, 8 of ■§ 3112 of the Revision.) -The- ¡observations of tbe Court, in the recent case (a. d. 1859) of Kennedy v. Cunningham, 2 Met. (Ky.), 540, are in point. The Court Bay: “ The' party objecting to a decision of the Court, must except at the time the decision is made.” Civil Code, Ky., § 364. “ A new trial may be granted for errors of law occurring at the trial and excepted to by the party making the application.” Civil Code, Ky., § 869. “The effect of ■ these provisions,” says Simpson, J., in the case last cited, “is, that an error committed by the Court is deemed waived, unless excepted to at the time, and cannot afterwards be relied upon either as a cause for a new trial or made available for a reversal of the judgment.” The Kentucky cases, it may be fairly inferred, treat the motion for a new trial as being necessary to prevent exceptions taken during the trial from being considered as waived.

In Missouri, the course of decision has not been uniform.. It was formerly held that all errors committed on the trial were waived, if not brought to the attention of the Court by a motion for a new trial. Hoersch v. The Bank, 10 Mo., 516; Payne v. The State, 13 Id., 445, and cases.

But under the act of 1849, the contrary is now held. Wagner v. Jacoby, 26 Mo., 530; 15 Id., 315. See remarks of Scott, J., 25 Mo., 566, and a motion for a new trial is not (as at common law) considered as waiving exceptions taken at the trial.

But in Arkansas, the contrary view is taken, and errors are waived which are not made the basis of a motion for a hew trial. Daniel v. Guy et al., 19 Ark., 122; Berry v. Singer, 5 Eng., 483.

• It may be useful, before concluding this discussion, to refer to the practice at common law. When a trial at nisi prius was ended, -the unsuccessful party had open to him one of two courses. If he had taken exceptions on the trial, he. might remove the cause, by writ of error, to the appellate court, in order to have it determined there, whether the points were correctly ruled at the trial; or, waiving that remedy, he might move the court in which the trial was had, for a new trial. He had to elect which course he would take. If he moved for a new trial, he was required to abandon all previous exceptions before the motion for a new trial would be entertained. If the motion was denied, the case was at an end, because by the common law no review by the appellate court was allowed of the refusal of the motion for a new trial. 3 Blacks. Com., 372, 387, etseq.; 1 Stark. Ev., 526, 531; 2 Tidd Pr., 786, 790, 814; Steph. on Plead., 121, 126. A bill of exceptions, being in the nature of a writ of error, cannot be determined in the court-in which it is executed. It is only to be made use of on writ of error. Ibid; Davenport v. Tyrrell, 1 W. Black., 679; Lofft., 84. On the other hand, the motion for a new trial must be made in and decided by the court in which the trial was had. The party could not pursue both courses: he must abide by his bill of exceptions or his motion for a new trial; and such is substantially the practice in England to this day. Adams v. Andrews, 1 Eng. L. & Eq., 305 (a. d. 1850); Doe v. Roberts, 2 Chit., 272; 2 B. & A., 367

By the common law, a party may move the proper court for a new trial, for opinions of the judge expressed on the trial, although he tendered no bill of exceptions. Steph. on Pld., 126.

The practice in the appellate courts in this country is not uniform, though, perhaps, some of the diversity maybe owing to statute, and some to the different constitution of our courts. Thus, it is by some courts held, that a motion for a new trial is a waiver of exceptions taken oh the trial. Dinsmore v. Weston, 33 Maine, 256; Cunningham v. Bell, 5 Mason, 173; Corlies v. Cummings, 5 Cow., 415 ; 1 Johns., 192, 195.

But, in general, the common-law rule is either not adopted at all or not applicable (as held in Indiana in the cases above-cited), .or-it is- so .modified .as to-be substantially, abrogated.

Thus, in this country, it is generally-held,, contrary to the .rule at common law, that, the decision, of a court, in-overruling a motion for a new trial,-.may, if excepted to, be revised in the appellate tribunal. . .Thus, also,, it is further generally held,- that exceptions previously taken may be1 embodied- in the motion for a new. trial, and in this manner preserved'.'and brought before the-appellate-tribunal;' but all rulings not excepted' to, and .all. exceptions not embodied in the motion for á new- trial, are, -by the appellate'court,' deemed waived.- Bond v. Baldwin, 9 Geo., 9, 13, and cases cited; Berry v. Singer, 5 Eng;, 483; 3 Ark., 144; 5 Id., 660; 18 Id., 138; Walker v. Hall, 16 Ala., 26; 13 Id., 494; Payne v. The State, 13 Mo., 445, and cases cited.

d.In England, bills of exceptions for' erroneous rulings at-the trial have been-mostly superseded by the more modern practice of moving the ■ court for a new- trial, which, may be had for misdirection or other misruling on the part of the judge at nisi prius. 3 Blk. Com., 373; 1 Stark. Ev., 531.

-. This review of- the practice'at-common law throws some, light-upon our-statute.- • The common-law did not allow the prevailing party to be harassed both -by a-bill of- exceptions and a motion for a-new trial. Hence,-If he moved a new trial, he waived his exceptions taken on the trial. ;

Our statute alsoprevents a double próceeding; by allowing the party (Rev.j §3112¡clause’8th), on the motion for anew trial;'to avail-himself of -‘-errors of-law occurring 'at the' trial, and excepted to by- the party making the application.’* Eor these reasons and for those given on the former.part of this opinion, based -upon the policy and justice of allowing' the District Court, when, the record is under its control, promptly to correct its own errors, and thus prevent the delay and -expense of an- appeal, we think the statute should be so construed as to' deem waived alb errors of law occurring-at the trial of .a-cause at law which, are not embodied in a: motion for-a new. .trial: •

A different conclusion from the above was reached by a majority of the court, .-as-it- was-then constituted.in..the •recent, and aS' yet unpublished -, case of McCoy v. Julien. (Reported in 15 Iowa.)

To the ruling in the case last cited, two of the members of the court, as now .constituted, adhere: The • judge (WrIS-ht; C. J.)-who-dissented in'-that case,- concurs-with the writer of-this opinion in the view above taken: • ■The •court are consequently-equally divided-on- the question, as :to whether this! court can- review the instructions complained of, these never having .been--made -.the -basis of a •motion of a new trial: - This makes it necessary,’therefore, .to pass upon the question of- law raised’.in. the instruction 'given-to -the-jury: Before doing so, we will remark that it -is' not--to be -inferred-from the foregoing-'that it.-is the opinion- of any member, of the -court .-that :a. motion..for a new trial is necessary in Chancery cases, tried' by the-first 'method, or where the appeal is-from some order of-the •Court duly excepted- to at the time, and from- which the -Revision allows ah appeal to be taken. • •'

II. At the defendant’s instance, the Court charged the jury that'’“the- said- mortgage does not give'the plaintiffs ’the right'-of' possession, and-.the jury'must find for- the 'defendant.’-’- '

Under the facts of this-.case-(see statement)-this instruction was correct. • This precise -question has - never before ’been presented-to-this Court.' In Campbell v. Leonard, 11 Iowa, 489, default had already taken place, and’.the' mortgagor had ho right to possession for any spécific length of ‘time. ' -

'Wheii thé mortgagor of-chattels' is in possession, and has the right -to the possession ’-of mortgaged- property-for a definite period, his interest prior to the expiration of 'such period, is the subject of levy and sale. Mattison v. Baucus, 1 Comst., 295, and cases cited; Hull v. Carnley, 1 Kern., 501.

■ But it is otherwise when the mortgagee may take pos.session at his pleasure, or where the mortgagor’s right of possession is for no definite time. Marsh v. Lawrence, 4 Cow., 467; Otis v. Wood, 3 Wend., 500; Campbell v. Leonard, 11 Iowa, 489.

In the case of Hull v. Carnley, supra, the mortgage con.tained an express stipulation, that until .default the mort.gagor should be entitled to the possession. Before any default the property was seized, and sold on execution against the mortgagor. It was held that the right of the .mortgagor (being for a definite period) was such an interest as might be taken in execution, and that the officer making the seizure and sale is not liable to the mortgagee, although . he sell the property generally, without in any way recognizing the lien of the mortgage, and deliver possession of it to the purchaser.

The effect' of such a sale is the same as if made by the ■ mortgagor in the ordinary way. It does not defeat the mortgage, or destroy or in any manner impair the legal . rights of the mortgagee.

It gives the purchaser the right to take possession of . and use the property until the day of payment or until the stipulated time expires; and it gives such purchaser the further right, by transferring to him the equity of redemption, to pay off the mortgage debt, thereby extinguishing the lien of the mortgage, and thus making his title absolute.

It may be objected that this doctrine may imperil the rights of the mortgagee where the sale is made to .an irresponsible person, who may waste or remove the property. One answer to this objection is, that it is the mortgagee’s folly to take such an insecure and uncertain security.

But, another answer is, there is no legal prejudice to the rights of the mortgagee. The mortgagor himself, if not restrained by the terms of the mortgage, may use the property, or even remove it. His grantee, whether by voluntary transfer or by sheriff’s sale, may, in the absence of 'stipulation to the contrary, do the same. If waste or removal is threatened under such circumstances as would .give the mortgagee the right to a receiver or an injunction as against the mortgagor, the same circumstances would also give a right to the same relief as against his vendee, or the vendee of the sheriff.

In the case at bar, Gibbon, the mortgagor, had the right of possession expressly reserved to him for more than two years after the levy. This was such an interest as might be levied on and sold by the sheriff. And such a levy ,was therefore not wrongful. It gave to the mortgagees no right of possession prior to the time fixed in their mortgage. It follows that the Court properly charged that they could not maintain their action of replevin, because not entitled to the right of possession.

This Court is united in the opinion that the direction to the jury, of which the appellant complains, was correct, and the judgment below is therefore

Affirmed.  