Brown v. Crawford

• Decision Date: 23 May 1892
• Citation: 29 P. 1137,2 Colo.App. 235
• Parties: BROWN v. CRAWFORD.
• Court: Colorado Court of Appeals

29 P. 1137

2 Colo.App. 235

BROWN v. CRAWFORD.

Court of Appeals of Colorado

May 23, 1892

Error to Arapahoe county court; GEORGE W. MILLER, Judge.

This suit was brought by R.J. Crawford, for use of D.G. Taylor against Charles E. Brown. There was judgment for plaintiff and defendant brings error. Reversed.

C.E. &amp F. Herrington, for plaintiff in error.

Dunklee & Jackson, for defendant in error.

RICHMOND P.J.

This was an action to recover commissions alleged to have been earned by D.G. Taylor, for whose use this suit is brought, in procuring the purchaser for certain real property. The record discloses that after the production of the testimony, and before the argument by the respective parties, the defendant presented written instructions to the court, and at the same time objected to the court instructing the jury orally. The court proceeded, however, to instruct the jury, but requested the stenographer of the court to note the instructions given. At the conclusion of the instructions, and before the argument, the defendant again excepted to the instructions as given, because the same were given orally, and excepted to the instructions generally, as well as to the refusal of the court to give the instructions asked by him. It also appears from the record that after instructing the jury orally, and subsequent to the argument, the instructions as given and taken by the stenographer were extended and signed by the judge. Subdivision 6 of section 187 of the Code provides that, "before the argument is begun the court shall give such instructions upon the law to the jury as may be necessary, which instructions shall be in writing and signed by the judge." Sees. Laws 1887, p 156. In thus giving the instructions we think the court erred, and violated the express provisions of the practice act above referred to. The subsequent extension of the instructions by the stenographer and the signature of the judge did not cure the error. The language of the Code is that it shall be given in writing before argument, and signed by the judge. In the case of Rich v. Lappin, 43 Kan. 666, 23 P. 1038, it was held that "the district court must give its instructions to the jury in writing, when requested so to do by either party; and the giving of them orally, and having them taken down by a stenographer, and after the jury has retired having them written out by the stenographer, is not sufficient." In Rising Sun, etc., Tp. Co. v. Conway, 7 Ind. 187, it was held that, "when the court is requested, at the proper time, to give...