Garrott v. Ratliff
| Decision Date | 17 November 1885 |
| Parties | Garrott, & c., v. Ratliff. Garrott, & c., v. Williams. |
| Court | Kentucky Court of Appeals |
APPEALS FROM CHRISTIAN CIRCUIT COURT.
A DUVALL FOR APPELLANTS.
1. The clerk having inserted the instructions in transcribing the bill of exceptions, pursuant to the direction " here insert," the bill is thereby made complete. (Meaux v. Meaux, & c., 5 Ky. Law Rep., 550.)
2. The statement of the judge in the bill of exceptions as to his own rulings can not be controverted by affidavits.
3. The bill of exceptions was properly certified. (Civil Code section 335, subsection 2; Ibid., section 339.)
4. Section 337 of the Code does not apply to a motion for either a peremptory instruction, or for an instruction as in case of non-suit. (Loving v. Warren County, 14 Bush, 316; Coffman v. Wilson, 2 Met., 542; Halloran's Adm'r v. L., C. & L. R. R. Co., MS. Op., Sept. 22 1883, 5 Ky. Law Rep., 245; Addison v. Crow, 5 Dana, 271.)
5. The court will presume that the instructions appearing in the bill were all the instructions given or refused, in the absence of some fact in the record indicating that there were additional instructions. (Merriwether v. Tucker, MS. Op Oct. 25, 1881; Smith v. Commonwealth, 1 Duvall, 224; Mickey v. Commonwealth, 9 Bush.)
6. A mere recognition or admission by the defendants of the genuineness of the notes is not sufficient to bind them. ( Warren v. Fant's Trustee, 79 Ky. 2.)
W. LINDSAY AND JOHN FELAND ON SAME SIDE.
W. P. D. BUSH FOR APPELLEES.
1. As the instructions were not embodied in or identified by the bill of exceptions, they can not be considered. (Forest v. Crenshaw, 4 Ky. Law Rep., 596; City of Columbus v. Duffy, Ibid., 830; Barclay v. Smallhouse, Ibid., 894; Cooper v. Cooper, Ibid., 900.)
2. As instruction No. 2 was not excepted to when given, any supposed error in giving it is unavailing in this court. ( Kennedy v. Cunningham, 2 Met., 540; Letton v. Young, 2 Met., 564; Russell v. Marks, 3 Met., 41; Tudor v. Lewis, 3 Met., 381; Cox v. Winston, 3 Met., 577; Civil Code, section 334.)
3. The circuit judge must " certify that the bill of exceptions is true," in order to make it valid. (Civil Code, section 339.)
4. The affidavits controverting and maintaining the truth of the bill of exceptions establish the fact that exceptions to the giving and refusing of instructions were not taken at the time, and, therefore, such exceptions are untruly inserted in the bill, and are unavailing.
5. There can be no reversal for an error in giving or refusing instructions, unless the bill of exceptions shows affirmatively that it includes " all instructions given and refused." (Civil Code, subsection 2 of section 337; City of Columbus v. Duffy, 4 Ky. Law Rep., 830; Dulaney v. Nunnery, 5 Ky. Law Rep., 314; Harvey v. Payne, 2 Met., 452; Heydon v. Lockhart, 1 Bibb, 308; Taylor v. Chaplin, 3 Mar., 492; Jones v. Williams, 4 Mon., 42; Cravins v. Grant, 4 Mon., 126; Huffaker & Shy v. National Bank of Monticello, 13 Bush; Gray v. Campbell, 5 Ky. Law Rep., 510; Turner v. Hagan, 3 Ky. Law Rep., 255; Flood v. Pragoff, 79 Ky. 607; L. & N. R. R. Co. v. Brown, 3 Ky. Law Rep., 82; Criminal Code of 1854, section 335; Criminal Code of 1877, section 341; Clem v. Commonwealth, 3 Met., 10; Jane v. Commonwealth, 3 Met., 18; Smith v. Commonwealth, 1 Duvall, 224; Mickey v. Commonwealth, 9 Bush, 593.)
6. Such an instruction as that complained of in this case has been approved by this court. (Forsythe v. Banta, 5 Bush, 547.)
CAMPBELL & GAITHER AND PETREE & LITTELL ON SAME SIDE.
1. One may become bound on a note by admitting or recognizing his forged signature thereto as genuine. (Forsythe v. Banta,?? 5 Bush, 547.)
2. A surety can not rely upon the fact that his name was signed without his written authority unless he pleads his suretyship. (Pomeroy on Remedies and Remedial Rights, pages 677, 681, and 703-705.)
3. The bill of exceptions should show that exceptions to instructions were taken at the time the instructions were given. (Civil Code, section 334; Kennedy & Bro. v. Cunningham, 2 Met., 538.)
A positive or direct statement in a bill of exceptions that it contains all the evidence, or all the instructions given and refused, is not essential to make the bill complete. When an appeal is prosecuted to this court upon an issue of fact, and the law applicable to that issue, and a reversal is asked because the verdict is not sustained by the evidence, it is the duty of the trial court to give a statement in detail of all the evidence in the case, and each and every instruction given or refused where exceptions have been taken to the instructions. If there is no exception to any of the instructions, it is immaterial whether they are in the bill or not, as, in such a case, the only question presented to this court for consideration will be: " Is there any evidence to support the verdict?" If the objection to the judgment below is not to the want of evidence to support the verdict or judgment, but to the admission or rejection of testimony, as provided by section 335, Civil Code, the material facts must be stated in the bill that the evidence conduced to establish. The presumption will be indulged by this court in favor of the truth of the bill of exceptions, and when it appears from the bill that instructions were given by the court of its own motion, or for the plaintiff and then for the defendant, or at the instance of the one party or the other, and then instructions by the court, the bill, so far as the instructions are concerned, will be regarded as complete, unless it appears upon the face of the record that other instructions were given or refused; and so of the evidence, the bill showing that the plaintiff introduced his testimony, or the following testimony, and then the defendant introduced his testimony, or examined the following witnesses, the presumption is that the bill contains all the evidence.
The purpose of the appeal is to reverse the judgment of the trial court by reason of an error committed to the prejudice of the party appealing, and the judge signing the bill of exceptions, in order that his own rulings may be tested, and also to protect the rights of the litigants, must be presumed to have embodied in the bill all the evidence and all the instructions in every case where it is necessary that all the evidence or all the instructions should be before this court, in order that the action of the court below may be affirmed or reversed.
This court has no right to say, upon reading a record containing a bill of exceptions, that the court below has failed to certify a complete bill, unless it so appears upon the face of the record.
Section 339 provides:
The signing by the judge in either case at the foot of the bill is, in substance, certifying that it contains all the evidence, or that the bill of exceptions is true.
The judge below, and the counsel for each litigant, look to the preparation of the bill of exceptions with a view of presenting the exceptions in a proper form to this court, and when coming here with the signature of the judge, and nothing to show an omission from the record of a part of the evidence, or a part of the instructions (when all should be embodied in the bill), the bill will be regarded as in compliance with the provisions of the Code.
Under the former practice cases can be found where bills of exceptions...
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