Meaux v. Meaux

• Decision Date: 15 December 1883
• Citation: 5 Ky.L.Rptr. 548,81 Ky. 475
• Parties: Meaux v. Meaux, & c.
• Court: Kentucky Court of Appeals

81 Ky. 475

5 Ky.L.Rptr. 548

Meaux v. Meaux, & c.

Court of Appeals of Kentucky.

December 15, 1883

Appellant had leave to file his bill of exceptions upon a certain day of the succeeding term. The bill was tendered in open court at the succeeding term, and before the day fixed for filing it. Held:

1. The provision of the Code that " time may be given to prepare a bill of exceptions, but not beyond a day in the succeeding term, to be fixed by the court," implies a right to file the bill at any time during the term before the day fixed.

2. The practice of obtaining an extension of time to a succeeding term to file a bill of exceptions is not by any means a safe one.

3. This court will not grant the writ of subpœ na duces tecum that the original bill may be inspected, unless there is an affidavit that the instructions embodied in the bill were not those offered, given, or refused by the court in the trial.

4. A ground for a new trial, " because of errors of law occurring at the trial," is too general, and will be disregarded.

5. When an appeal reaches this court the grounds stated in the court below, " that the court erred in refusing important testimony by plaintiff," or " erred in admitting incompetent testimony for the defendant," ought to be made the basis of a more specific statement, and the particular testimony should be stated. The trial judge is presumed to know what errors are complained of, but this court can only know it by an assignment of errors.

6. The same particularity is not required in regard to instructions given or refused when errors are assigned. Instructions can be ascertained by even a cursory examination of the bill of exceptions. Not so, however, as to evidence.

7. That " the verdict or judgment is contrary to evidence" is sufficient, and brings up for review, where there is no other assignment, the entire testimony in the case.

8. The contestants were properly allowed to prove that a witness had made statements different from his present testimony, but proof of the statement by the witness that other witnesses in some other trial, had sworn to falsehoods, were incompetent.

APPEAL FROM MERCER CIRCUIT COURT.

P. B THOMPSON, DURHAM AND POSTON FOR APPELLANT.

Every ground for a new trial fully set forth the error relied upon except, perhaps, that which relies upon " errors of law occurring during the trial." As to the others, no real objection can be made.

The court improperly permitted several witnesses to detail the conversations and acts of one of the attesting witnesses.

The court erred in refusing to give instructions (a ) 5, (a ) 4, and erred in giving instructions Nos. 5 and 4 on motion of appellee. (McClain v. Dibble, 13 Bush, 298; 2 Bibb, 150; 1 Mar., 133; 5 Mon., 34; 10 B. Mon., 259; Thompson v. Blackwell, 17 B. Mon.; 1 B. Mon., 170; 4 Litt., 273; 5 Ib., 43; 5 Mon., 34; Whart., vol. 1, secs. 20 and 557; 1 B. Mon., 170; 1 Met., 139.)

BELL & WILSON FOR APPELLEES.

The grounds for a new trial made by appellants raised no question that can be considered by the court, except the fifth, which is that the verdict is not sustained by the evidence.

It is but fair that a court that has made an error shall have that more specifically called to its attention.

No error was committed by the court in giving or refusing instructions, nor was any error made in permitting or rejecting evidence. (McClain v. Dibble, 13 Bush, 297; 14 Ib., 297; Helm v. Coffey, 80 Ky. 176; Bowman v. Bartlett, 3 Mar., 98; 9 B. Mon., 76; Thompson v. Thompson, 17 B. Mon., 28; Howard v. Coke, 7 Ib., 657; Tudor's case, 17; Ib., 392; Harrell's case, 1 Duv., 206; Smith v. Kelley, 2 Bush, 558; Kevil v. Kevil, 2 Bush, 615; Reid's case, 2 B. Mon., 80; Elliott's will, 2 J. J. Mar., 342; Shropshire's will, 5 Ib., 92; Wise v. Fort, 81 Ky.; 13 Bush, 169; Hopson v. Boyd, 6 B. Mon., 297.)

OPINION

PRYOR JUDGE:

This record presents various questions of practice under the Code that the court should dispose of before proceeding to consider the merits of the controversy. This is an appeal from the judgment below determining that a certain paper offered for probate in the Mercer county court is not the last will and testament of Lowery Meaux.

The first question presented is, does the bill of exceptions form a part of the record? Section 334 of the Civil Code provides that " the party objecting must except when the decision is made, and time may be given to prepare a bill of exceptions, but not beyond a day in the succeeding term to be fixed by the court. The bill of evidence in this case was tendered in open court at the succeeding term, and before the day fixed for filing it, and taken for consideration by the judge and filed at the same term, but on a day subsequent to the day fixed in the order for filing it. It is insisted by counsel that the appellant had no right to file or tender the bill on any other day than the one designated at the time leave was given to file it at the succeeding term, and, if this is not the correct practice, that it was not filed until a subsequent day, and therefore should be excluded from the record.

The framers of the Code evidently intended that the party whose duty it was to prepare and present the bill should not file it at a day beyond that fixed by the court when extending the time, and the words not beyond a day to be fixed by the court would imply a right to file it at any time during the term before the day. It is argued that if this is the construction given the provision, that the appellee or adverse party is required to be in court every day of the term up to and including the day fixed, in order that he may have an opportunity to examine the exceptions, or at least to know that they are filed. This would work a seeming hardship; but it is to be presumed that the application for an extension of time must be shown to be absolutely indispensable before the judge will grant it, and therefore that such a case will seldom occur. It is an unsafe and dangerous practice, working often much injustice to litigants, to extend the time to a succeeding term, when court and counsel may lose sight of the material and important exceptions taken, as well as forget the statements of witnesses whose testimony is of the greatest importance to the one side or the other, and as it is only in cases of necessity, arising from a want of time to prepare the bill where time will be given, cases resulting in the inconvenience complained of must seldom occur. We think, therefore, that the appellant had the right to file the bill before the day fixed by the court, and that a tender of it should be regarded as equivalent to a filing. The bill was prepared and in a complete state, and when tendered to the judge and taken by him for consideration, the appellant had no control over it. He had done all he could have done or was required to do. He tendered it for the purpose of filing, and it should be considered as filed.

It is again insisted that the instructions are not part of the record, and the original bill of evidence is brought to this court for the purpose of showing that the instructions were not embodied in the bill when signed by the judge, and the words here insert them entered so as to direct the clerk what instructions to copy. In the opinion delivered at the last term, in the case of Forrest v. Crenshaw, the instructions were not made part of the record by an order of court, or included in the bill of evidence, but the clerk, in a subsequent part of the record, certified that these were the instructions given. The bill of evidence signed by the judge was not complete, and what instructions were given or refused this court could not know, except from the statement of the clerk. The usual mode of making up bills of exception is by the direction, here insert instructions 1, 2, h, or instructions a, b, h, or instructions in the handwriting of the court or counsel, so as the clerk can identify them; and when copied into the bill of evidence, in the usual form, the bill is complete and the instructions a part of the record; or when the court directs the insertion of the instructions without identifying them, and the clerk inserts the instructions, thereby making the bill complete, this court will not grant the writ of subpœ na duces tecum that the original bill may be inspected, unless there is an affidavit that the instructions embodied in the bill were not those offered, given, or refused by the court on the trial, and so with reference to any exhibit made part of the bill of evidence.

Again, it is urged that the grounds for a new trial are not sufficiently specified. The grounds are--

1. Because the court permitted the introduction of incompetent and illegal testimony that was excepted to at the time.

2. Because the court erred in rejecting important testimony which was offered in his behalf.

3. Because the court erred in giving the instructions for the defendant.

4. The court erred in refusing instructions offered by the plaintiff.

5. Because the verdict is contrary to the law and the evidence.

6. Because...