Blumer v. Bennett
| Decision Date | 16 April 1895 |
| Docket Number | 6175 |
| Citation | 63 N.W. 14,44 Neb. 873 |
| Parties | F. L. BLUMER v. GEORGE A. BENNETT ET AL |
| Court | Nebraska Supreme Court |
ERROR from the district court of Douglas county. Tried below before SCOTT, J.
REVERSED AND REMANDED.
Estelle & Hoeppner, for plaintiff in error, cited: Sloan v Coburn, 26 Neb. 607.
W. W Morsman, contra, cited: Goodrich v. Downs, 6 Hill [N Y.], 438; Barney v. Griffin, 2 N.Y. 365; Leitch v. Hollister, 4 N.Y. 214; Sukeforth v. Lord, 25 P. [Cal.], 497; Brigham v. Jones, 29 P. [Kan.], 309; Beels v. Flynn, 28 Neb. 575; Hedman v. Anderson, 6 Neb. 399; Tallon v. Ellison, 3 Neb. 75; Montieth v. Bax, 4 Neb. 170; Cleveland Paper Co. v. Banks, 15 Neb. 20; Cadwallader v. Blair, 18 Iowa 420.
The defendants in error have presented a cross-petition in error to reverse an order of the district court overruling their motion to strike from the record notations of exceptions on the margin of the instructions. Inasmuch as most of the assignments in the plaintiff's petition in error relate to the instructions it is necessary to consider and decide upon the questions presented by the cross-petition before reviewing the case on the principal petition in error. The record filed with the cross-petition consists of the motion to strike from the record the notation of exceptions and an order overruling the same without any specific findings. There is also attached, duly settled and authenticated, a bill of exceptions embodying the affidavits used on the hearing of this motion, the judge's certificate to this bill of exceptions containing specific findings of fact and the reasons of the court for overruling the motion. The reasoning of the court is not properly a part of the record in any place, and the special findings, to be available, should be embodied in the record and not in the bill of exceptions. The record filed with the plaintiff's petition in error shows on the margin of each instruction given or refused a notation to the effect that plaintiffs except. After this notation appear, in some instances, the words "Scott, Judge," and from the affidavits filed and used on the hearing of the motion to strike, it appears that immediately after the court charged the jury and refused the instructions which were refused, counsel on both sides arose before the jury had left the box and indicated their desire to take exceptions; that one of plaintiff's attorneys stated that he intended to take exception to the instructions given and to the refusal to give those by him requested, and that the court remarked that no formal exceptions need be taken at that time, but might be taken any time within three days after the verdict; that counsel acquiesced in that ruling, and very soon after the verdict was returned one of plaintiff's attorneys went to the clerk's office and himself made the notations referred to on the margin of the instructions.
The defendant in error, in support of his cross-petition, argues that the notation of the exceptions by counsel was unauthorized and of no avail; that the instructions should be incorporated in the bill of exceptions and are not part of the record, or, if the instructions themselves are a part of the record, that the exceptions thereto are not and must appear by bill of exceptions and not by the transcript. In order to come to a consideration of these points it is necessary to refer to the statutes. Chapter 19, section 52 Compiled Statutes, makes it the duty of the judges to reduce their charges to writing unless the same be waived in open court "and so entered in the record of said case." Section 53 provides for the modification of instructions requested by the use of such characterizing words as "'changed thus,' which words shall themselves indicate that the same was refused as demanded." Section 54 requires the court to read the instructions given to the jury, to announce them as given, and to announce as refused all those which are refused and to write the word "given" or "refused," as the case may be, on the margin of each instruction. Section 55 requires all instructions to be filed by the clerk, and provides that "such instructions shall be preserved as part of the record of the cause in which they were given." Section 307 of the Code of Civil Procedure defines an exception as "an objection taken to a decision of the court upon a matter of law." Section 308 requires the party objecting to the decision to except at the time the decision is made. Section 310 provides that where the decision objected to is entered on the record and the grounds of objection appear in the entry, the exception may be taken by the party causing to be noted at the end of the decision that he excepts. In Eaton v. Carruth, 11 Neb. 231, 9 N.W. 58, it was said that the instructions are properly matters of record in this state and should not be embodied in a bill of exceptions. Practically the same language was used in Cleveland v. Banks, 15 Neb. 20, 16 N.W. 833. It may be conceded that the expressions in both cases were mere dicta; but they have been followed in practice for many years, and having become a rule of practice, should not be departed from without the gravest reasons for so doing. We do not think such reasons exist. On the contrary, we are clearly convinced that the rule announced in those cases is correct. The sections from chapter 19 referred to make it too plain for construction that the instructions on being filed become a part of the record. If so, they need not be, and should not be, embodied in a bill of exceptions, because the office of the bill of exceptions is to bring into the record what otherwise would not there appear. So, too, section 54 of chapter 19 requires the court to write the word "given" or "refused," as the case may be, on the margin of instructions. This is made the more manifest by the provision of section 53, whereby the use of characterizing words in modifying an instruction requested is made equivalent to the use of direct words showing that the instruction as requested was refused. We, therefore, hold that construing these sections the instructions given and refused are a part of the record, and that the marginal notes by the judge indicating his ruling thereon become also a part of the record, as much so as a journal entry embodying a ruling of the court, and that, therefore, neither the instructions nor the action of the court thereon need be, or should be, embraced in the bill of exceptions. Passing on to the requirements of the Code in regard to exceptions, we note, first, that it is not required that in objecting or excepting to a ruling on the instructions any specific reason need be given. Therefore, the instruction and the decision of the court in giving and refusing it appearing of record, it is sufficient, under section 310, in order to note an exception thereto that the party excepting should cause it to be noted at the end of the decision. We do not think that this section is important so far as it applies to the mere place of notation, but even if the notation must be at the end of the decision and nowhere else, in the...
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