DocketNumber: No. 1041
Citation Numbers: 29 Wyo. 440, 213 P. 941
Judges: Blume, Kimball, Potter
Filed Date: 4/10/1923
Status: Precedential
Modified Date: 7/20/2022
This cause is before us at this time upon an application of the defendants in error for an order directing that the bill of exceptions be returned to the District Court to allow the same to be amended and corrected so that it may speak the truth, by inserting on a specified page (445) the date when the exceptions to certain instructions there mentioned “were dictated to the court reporter, to wit at about 8 o’clock a. m. on Dec. 2, 1920, the day following the rendition of the verdict.” And it is stated in said application that the bill was not submitted to the defendants in error before its allowance, and that the suggested amendment is necessary in order that the bill shall correctly show the facts.
The plaintiffs in error have submitted in opposition to the application an affidavit of the said court reporter subscribed and sworn to a few days later than his affidavit above mentioned, in which it is stated substantially as follows : That his original notes of the trial in this cause were written with a fountain pen and ink; that later he correctly
‘1 The affiant further says that after the conclusion of all of the evidence in the ease, and before the trial court gave its instructions to the jury, counsel for the parties appeared before the trial judge, to object to the several instructions given in the ease, and consumed about an hour in argument in presenting such objections, and that exceptions were taken at the time to the several instructions given. That a number of criminal cases were waiting for trial, for which witnesses were in attendance, and that counsel for plaintiffs in error requested of the trial court leave to dictate said objections and exceptions into the record, and that the trial court thereupon gave counsel for plaintiffs in error permission to reduce their exceptions to writing and to dictate the same into the record after the instructions were given. ’ ’
The part last above quoted was probably not intended as a statement of what is found in the reporter’s notes, but as stating facts within his personal recollection; and we so understand it. The specific part of the bill referred to by the application under consideration is the following found
It is to be observed that the desired amendment of the bill is for the purpose only of showing that what appears on page 445 to have been said by Mr. Murane was dictated to the court reporter on December 2, 1920, after the verdict had been rendered and the jury discharged. It is not proposed by the application to change or amend the bill in any other particular; thus, it is not proposed to amend the bill respecting the time when the exceptions were actually taken and stated in court, which is found fully and definitely stated in another part of the bill. And it may not be out of place here to say that it has never been the general practice in this state or thought necessary, to properly preserve the
Continuing that subject, it may be said further, as tending to explain the practice, that in civil cases the jury is instructed upon the law of the case before proceeding with the arguments of counsel. (Comp. Stat. 1920, Sec. 5769.) It is provided in that section: 1. That when special instructions are desired by either party, they shall be reduced to writing, numbered and signed by the party or his attorney, and delivered to the court. 2. That before the argument of the case 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 be numbered and signed by the judge. ’ ’ 3. That the court shall either give requested instructions, or positively refuse to do so, or give them with modifications, “and shall mark or endorse upon each instruction so offered in such manner that it shall distinctly appear what instructions were given in whole or in part, and in like manner those refused, ’ ’ so that either party may except to the instructions as given or refused or modified or to the modification. 4. “All instructions given by the court must be filed, together with those refused, as a part of the recordThis last clause is considered, and, to some extent explained, in Stoner v. Mau, 11 Wyo. 366, 72 Pac. 193, 73 Pac. 548.
Referring again to the bill we find it stated on page 470, immediately following a recital of the instructions given by copying the same and reciting that each was given: “To the giving of instructions numbered 1, 2, 4, 5, 6 and 8, as given by the court, the defendants excepted at the time (italics ours) and the exception was allowed, as will more
The fact that the said exceptions were stated to the court, and understood by the court to have been taken at the time the instructions were given, is shown further in the bill by a statement following each of the instructions so excepted to, as copied into the bill, that “defendants except;” that appearing to have been noted over the initialed signature of the trial judge. And this is verified by the original instructions found in the record here among the original papers outside the bill, shown by proper endorsement thereon to have been filed on December 1, 1920, which filing is required by the statute “as a part of the record.” "We copy here the notations in writing, evidently in the handwriting of the district judge who presided at the trial, under two or three of said instructions given: Under Instruction No. 1 appears the following: ‘ ‘ Given by the court of its own motion. Plaintiffs except. Defendants except. R>. K. J.” The initials unquestionably were intended as the official signature of the trial judge in compliance with the statute requiring instructions given to be signed by him, and are to be read or interpreted as meaning: “Ralph Kimball, Judge; ’ ’ the record showing that Judge Kimball, then the judge of the District Court wherein the cause was tried, but now a justice of this court, presided at the trial and allowed the bill of exceptions. Underneath Instruction 4 appears the following: “Requested by the plaintiffs. Given. Defendants except. R. K. J. ” Similar notations appear under each of the instructions given, showing the exception, if any; and the exception of defendants to each instruction mentioned on pages 445 to 449 of the bill, inclusive, is shown as above by a notation of the exception under the instruction and over the signature of the judge.
"We think it may properly be assumed, nothing to the contrary appearing, that the trial judge, when allowing the bill, believed that it spoke the truth in stating that the ex-
And we think the showing now made is not sufficient. Certainly not to sustain an amendment declaring that the exceptions were not taken at the time the instructions were given; and as to the grounds of the several exceptions stated on pages 445 to 449 inclusive, if the same may be material upon a hearing of the cause, the showing made fails to establish the existence of any record or other memoranda sufficient to authorize the proposed correction.' It appears to us inconceivable, from the proof before us relating to the pencil notation of the date “Dec. 2, 1920,” in the-reporter’s notes, that the judge who presided at the trial of the cause, or the present judge of the district, might conclude that the bill should be corrected to show that the dictation by defendants’ counsel there recorded was in fact after the trial
The motion or application for the return of the bill for correction will, therefore, be denied.
Motion Denied.