Whipple v. Preece

• Decision Date: 23 February 1899
• Citation: 56 P. 296,18 Utah 454
• Court: Utah Supreme Court
• Parties: EDWARD WHIPPLE, APPELLANT v. WILLIAM PREECE, JOSEPH TOLLIVER, LESLIE ASHTON, LYCURGUS JOHNSON, A. N. JOHNSON AND SNELLEN JOHNSON, RESPONDENTS

56 P. 296

18 Utah 454

EDWARD WHIPPLE, APPELLANT v. WILLIAM PREECE, JOSEPH TOLLIVER, LESLIE ASHTON, LYCURGUS JOHNSON, A. N. JOHNSON AND SNELLEN JOHNSON, RESPONDENTS

Supreme Court of Utah

February 23, 1899

Appeal from the 4th District Court, Uintah County, Hon. W. N Dusenberry, Judge.

Action for conversion of property. From a judgment upon a verdict of "no cause of action" plaintiff appeals.

Reversed.

L. R Rhodes, Esq., for appellant. S. McDowall, of counsel.

The court in giving plaintiff's request marked "6th" in the manner he did, with his endorsement thereon in writing, to wit: "The foregoing requests are refused, W. N. Dusenberry, Judge," the said endorsement being an instruction that the request was refused, and should not be considered by them, and certainly was calculated to mislead the jury. Such endorsement was prejudicial to plaintiff and reversible error.

The court erred in numbering the instructions given other than as marked by counsel for defendants, to wit "Defendants' Request Nos. 1 to 19," inclusive, and in attaching plaintiff's request, marked "6th", and "refused," as aforesaid, to the nineteen requests of defendants, and also erred in making oral comment and explanation, in the presence of the jury, as to the instructions.

"Instructions refused or modified, must be so marked." Sec. 3148 Rev. Stats., 1898.

"Instructions given shall be in consecutively numbered paragraphs and shall be read to the jury without comment or explanation." Sec. 3149 Rev. Stats., 1898. Sackett Inst. to Juries, p. 13.

F. S. Luethi, Esq., S. R. Thurman, Esq., and Messrs. Warner & Houtz for respondent.

Appellant contends that there was an error committed in giving the plaintiff's sixth request, for the reason that there was written upon it, "The foregoing requests are refused.--W. N. Dusenbury, Judge," and that the error consists in this, that by the word being there, refused, signed by the judge, the jury would be led to believe that the request had been refused and that they would not consider it. The record in this case shows that the sixth request of plaintiff was read to the jury, and that it was presented to them under such circumstances, that it would be impossible that they should consider it as not before them, by reason of the words written upon it. There was a long colloquy by appellant's counsel and counsel for the respondents, with respect to this very instruction in the presence of the jury, which shows plainly that the jury fully understood the request, and that they were to consider it, and not only that but the record shows, by an endorsement upon the sixth request of the plaintiff itself, that it was given, these words appearing on the margin: "Given--Dusenbury, Judge." Therefore no harm, such as plaintiff complains of could have resulted therefrom.

The objection as to numbering the instructions, or failing to number them, together with the objection to the words "refused" marked on the sixth request, it seems to us, are hypercritical, and do not touch upon anything that possesses merit in this cause, but rather savors of barren technicality. As we have attempted to show, they were, if not strictly in conformity with the law, without any prejudice to plaintiff, and on account of such, this cause ought not to be returned for a new trial.

BARTCH, C. J. BASKIN, J. and McCARTY, District J., concur.

OPINION

BARTCH, C. J.

This is an action for the conversion of property, the same having been disposed of under execution, by the defendants. At the trial the jury returned a verdict of "no cause of action," and, upon judgment having been entered and a motion for a new trial overruled, the plaintiff appealed. Among the numerous errors assigned, is one relating to irregularity of proceedings and conduct of the court. The appellant complains that after the bill of exceptions had been settled, signed and filed with the clerk, the presiding judge made the following order: "On this day came on to be heard plaintiff's motion for a new trial herein, said plaintiff giving as grounds for said motion the misconduct of the court and the jury at the trial of said cause heretofore had herein. The court, after hearing the arguments of counsel, and being fully advised in the premises, denied said motion, to which ruling plaintiff, by his counsel, L. R. Rhodes, duly excepted. It was thereupon ordered that pages from 45 to 48 1/2 inclusive, be eliminated from the original bill of exceptions, whereupon said pages were duly cut from said bill of exceptions by the clerk. It was thereupon ordered that said original bill of exceptions, as finally settled by the court, be used as part of the record on the appeal of said cause to the Supreme Court of this State;" and insists that the elimination of the portion of the bill of exceptions thus ordered to be made, prejudiced the rights of the appellant. The part so eliminated has been printed in the abstract, and counsel for appellant has presented it for consideration by this court. The question, therefore, is whether we can consider any matter, although printed in the abstract, which is not found in the record, or bill of exceptions, as finally settled and signed by the trial judge and filed in this court. We think not. It is true a party to a suit, who feels himself aggrieved by a ruling or order of the court, has a right to allege his exceptions thereto, and, when these are presented in proper form and within the prescribed time to the judge, then, at a time designated by him, of which the parties must have notice, it is his duty, if the exceptions are found to conform to the truth to settle the bill, and, in doing so, all redundant and useless matter should be stricken out. When settled, it is the duty of the judge to sign, attach his certificate to the effect that the same has been allowed, and have the bill filed with the clerk. R. S. Sec. 3286.

If, however, when presented, the exceptions are not conformable to the truth, the judge ought to withhold his signature, until the expectant consents to change them in accordance with the facts. After a bill of exceptions has been so settled, signed and filed with the clerk, neither one nor both of the parties to the suit, can make alterations therein, without the consent of the judge. Nor can the judge thereafter do so without notice to the parties. If, however, after signature and filing with the clerk, and before filing in the appellate court, it should be ascertained that the bill contains improper and erroneous matter, then the judge, upon notice to the parties to the suit, has undoubted authority to make the necessary correction in the bill, so as to make the exceptions conform to the facts of the case, and such corrections may be made nunc pro tunc, at a subsequent term. 3 Ency. of Pl. & Pr. 501-505; The People v. Anthony, 129 Ill. 218, 21 N.E. 780; Beckwith v. Talbot, 2 Colo. 604; Shepard v. Hull, 42 Me. 577; Churchill v. Hill, 59 Ark. 54, 26 S.W. 378; Pollard v. Rutter, 35 Ill.App. 370; Harris v. Tomlinson, 130 Ind. 426, 30 N.E. 214.

In the case at bar, on the hearing of the motion for a new trial the court ordered certain matter to be eliminated from the bill of exceptions. Both parties were present and were heard, or had an opportunity to be heard. The court therefore, had jurisdiction and authority to make the order, and the pages of the bill, containing the matter in question, having, pursuant to the order, been cut out and entirely removed from the bill of exceptions, and not reinstated by proper proceedings, this court has no power to consider the same on appeal. If the appellant was aggrieved because of the action of the trial judge, and regarded the matter stricken from the bill important and necessary to the determination of his rights in the appellate court, he ought to have instituted proceedings, as provided in the R. S. Sec. 3289, which reads: "If the judge in any case refuse to allow an exception in accordance with the facts, ...