82 Ark. 164 | Ark. | 1907
(after stating the facts.) First. Appellee contends that there is no bill of exceptions. The purported bill of exceptions was filed by the circuit clerk May 4, 1906. At this time it was not a bill of exceptions because it had not been signed by the presiding judge. But the bill was signed on the 8th by the judge before the time given had expired, and it was left with the circuit clerk. It was not taken from the clerk’s office. On the 10th day of July it was indorsed by the clerk “Filed.” But the paper became a part of the record in the cause when it was signed by the presiding judge within the time allowed and was within that time left or deposited with the circuit clerk to be made a part of the record. The paper was “filed” on the day it was so left or deposited with the clerk. That act constituted the filing, and it was the duty of the clerk to mark it filed as of that day. The fact that he did not do so until long after did not invalidate the previous filing. A paper is “filed” when delivered to the proper officer and by him received to be kept on file. And. Law. Dict. 459, bottom page; Naylor v. Moody, 2 Blackf. (Ind.) 247; 19 Cyc. 529, 530; Peterson v. Taylor, 15 Ga. 483; Powers v. State, 87 Ind. 144-148; Bettison v. Budd, 21 Ark. 578; Grubbs v. Cones, 57 Mo. 83. The indorsement by the clerk is the highest legal evidence of the filing, yet the filing, in contemplation of law, is as perfect before as after such indorsement, and dates from the receipt by the clerk and its lodgment in his office.
Second. The instructions and a full statement of the essential facts in evidence are set forth in the statement of facts. Appellant contends that the instructions given at the instance of appellee are erroneous, and that the evidence does not sustain the verdict. - The first instruction does not invade the province of the jury as appellant contends. It is hypothetical, and leaves the jury to determine whether the facts are established by a preponderance of the evidence. The second instruction does not submit matters' without the issue, as appellant insists. In the light of the evidence the jury were not warranted in finding that the building was erected according to different plans and specifications from those by which the stone was cut. The details by which the stone was cut, and those by which the building was constructed as to stone work, under the evidence, were the same, These were furnished by the architect, and the only question was whether or not the appellant had followed these details in cutting and furnishing the stone according to contract. The second instruction could not have misled the jury. The second, third, fourth and fifth instructions submitted to the jury the question of whether or not the appellee was damaged in certain particulars. None of these instructions were abstract, and, taken as a whole, the law was correctly declared and fairly-submitted the issues of fact for the determination of the jury. While the instructions were not in good form, and not to be approved as precedents, no specific objection was made calling attention of the trial court to the particular matters urged here for reversal. In the absence of such objection, we do not think there was any prejudicial error in giving the instructions in the form presented. The verdict was sustained by the evidence.
The judgment is therefore affirmed.
