Hahn v. Miller , 60 Iowa 96 ( 1882 )

Beck, J.'

i. practice: tíoíis: tlmeioi ccmslrueaíute I. Defendant moved to strike from the record) and abstract the bill of exceptions, upon the ground that it was not filed in the District Court and made a part of the record within the time required by law. It is shown by the abstract that judgment was rendered. in the court below on the 18th day of May, 1881, and the plaintiff was allowed sixty days in which to settle the bill of exceptions. It is made to appear by a certificate of the clerk that the District Court adjourned on the 21st of the same month. The bill of exceptions was signed by the judge on the 15th and filed on the22d day of July following. The filing, it will be observed, was after the time prescribed by the court “to settle” the bill of exceptions. Code;, section 2831, requires “a bill of exceptions to be filed during tbe term, or within such time thereafter as the court may fix; but in no event shall the time extend more than thirty days beyond the expiration of the term, except by consent of the parties or by order of the judge.”

The requirements of this statute are absolute, and we possess no authority to disregard them. The statute requires the bill of exceptions to be filed within the time prescribed by the order of the court or agreement of the parties. Before filing, it must be settled. It is not unreasonable, we think, to hold that extension of time for settling a bill of exceptions would extend correspondingly the time for filing. If this be so, defendant had the sixty days in which to file the exceptions, but no longer; if it be not so, time was not extended beyond the term. In either view, the bill of exceptions was not filed intime. It must, therefore, be stricken from the record. See Lloyd v. Beadle et al., 43 Iowa, 659; Lynch v. Kennedy, 42 Id., 220; St. John v. Wallace, 25 Id., 21.

Bennett v. Davis, Morris, 363; Humphry v. Burge, 1 G. Greene, 223; Claggett v. Gray, 1 Iowa, 19, and Jones v. Hockman, 12 Iowa, 101, were decided under statutes prescribing the time within which bills of exceptions should be allowed and filed. These statutes differ from the one now in fqrce. See Revised Statutes 1843 (Blue Book) page 472, § 19; Code 1851, §§ 1805,1806; Revision 1860, § 3106.

%_. . ev?aenIe°to: p£t?és.ent °f II. The jury, after the case was submitted to them, sent a written request to the effect that the reporter be permitted to read to them from his notes the testimony of certain witnesses. The record shows that the parties consented “that the reporter should read such portions of the testimony as the jury desired. Thereupon the reporter did go before the jury and read the minutes of such portions of the testimony as he was requested to read, and which he thought were in response to the questions asked him by the jury. The defendants complained of the action of the reporter, which was one of the grounds for a motion for a new trial. The record shows that the reporter proceeded within the spirit of the agreement of the parties under which he acted. The defendants haying assented to these proceedings cannot now complain of them.

3. juky: RefeMant°to-e" fflestoppe'd.*’ III. The jury were taken to view the locus in quo. In the motion for a new trial plaintiff complains of misbehavior °*' defendant, alleging that he rode in the sleigh with the jury upon their return, and pointed out the course of a creek, and that he offered in the presence of the jury to have a witness point out the premises, which plaintiff’s counsel declined. The evidence upon the motion fails to show anything further than that defendant rode with the jury and counsel on both sides of the case, but the allegation that he said anything to the jury, or in their hearing, is not sustained. Without the consent of the other party or his counsel, possibly he ought not to have ridden in the sleigh, but as no objection was made at- the time by plaintiff, when he could have prevented the act, we think it ought not now to be urged as a ground for disturbing the verdict.

4. instkocwithout^re-nil estopped, IT. The seventh instruction upon the court’s own motion, and the second and third given upon request of defendant, are objected to on the ground that they announce incorrect rules relating to the right of a land-owner to divert and change the course of the surface water. We need not inquire into the correctness of the rules, for the reason that the issues in the case did not involve the diversion of surface water. The petition seeks to recover for the diversion of a “natural stream or water course with regularly defined banks or channels through which it has continually flowed for more than ten years past. There is no claim’ for changing the flow of surface water, and plaintiff is not entitled to recover therefor upon the pleadings in the action. The instructions, therefore, if incorrect, could have worked no possible prejudice to plaintiff.

For the same reason, plaintiff cannot complain of the refusal to give an instruction upon the same subject requested by him. The verdict will not be disturbed on the ground that instructions given pertain to an issue not in the case, for the reason that plaintiff asked an instruction upon that issue, thus leading the court to give instructions upon it.

5 practice m courtferrors not assigned, Y. The second instruction given upon the court’s own ra0^011 *s complained of by plaintiff’s counsel, assignment of error being based, thereon, it cannot be urged upon'our attention.

YI. It is insisted that the second and third instructions given upon defendant’s motion are in conflict with the first given upon plaintiff’s request. We discover no conflict between them. Those first named relate to the right of a landowner to divert surface water, the other relates to a stream of . water. The instructions claimed to be in conflict relate to different subjects.

YII. As the evidence is stricken from the record, we cannot consider the position of plaintiff’s counsel that the verdict is in conflict therewith.

The foregoing discussion disposes of all questions which can be considered in view of the condition of the record.

Affirmed.