45 Ark. 485 | Ark. | 1885
The appellee sued the railroad for.a severe personal injury received by him through the negligence, as he alleged, of the company, while he was a passenger on one of its trains. There was a verdict and judgment in his favor for $1000. »
The errors assigned by the company in the motion for a new trial are: That the verdict is against law and evidence, and that the court erred in giving “ instructions numbered one and. three for the appellee.”
The bill of exceptions'as certified in the transcript sets forth three instructions given by the court at the instance of the appellee. Before the submission of the cause, however, and before filing his abstract the appellee suggested a diminution of the record and sued out a writ of certiorari. In return to this the clerk certified the skeleton bill of exceptions, just as it existed when filed in his office. From this it appears that none of the instructions copied into the bill as first certified were actually incorporated in it, but after the words, “ the plaintiff then asked the court to give the following instructions,” it proceeds thus: “(The clerk will here please insert instructions, numbering them).” The question whether this sufficiently identifies the instructions given at the instance of the appellee is pressed by his counsel upon our consideration.
Prayers for instructions to the jury submitted to the court by the parties to an action, are not a part of the record of the case. It is the province of the bill of exceptions to bring them ■.upon the record, when it is desired to review their correctness here.
When the bill of exceptions is allowed and signed by the judge, nothing remains to make it part of the record, except filing it. Mansf. Rev. St., Sec. 5160. It would seem to follow that “when the bill receives the signature of the judge it should be complete, and this we understand to be the substance and spirit of all the decisions. There is to be no further discussion, no further discretion; the record is made. . . . A record must speak for itself. It must show upon its face alL that it is. It must be its own evidence of all it contains. No part of its contents may rest upon the discretion of the clerk, the recollection of the judge, or the testimony of counsel.”' A. & N. Railroad v. Wagner, 19 Kans., 335. But to insure this, certainty it is not essential that everything that finds a place in the bill be written out in full. The rule, in such cases, is, that we will regard that as certain which can be made so. Sterman v. Cravens, 2p Ark., 34.8. But certainty to a reasonable intent has always been required by this court. Sexton v. Brooks, 15 Ark., 348; Dillard v. Parker, 23 Ib., 503; Woolfirk v. Wright, 28 Ib., 1; Sterman v. Cravens, sup.; Johnson v. Terry, 35 Ib., 220; Carroll v. Bowles, 40 Ib., 167.
In Carroll v. Bowles, sup., instructions were incorporated in the motion for a new trial, and the motion was set out in full in. the bill of exceptions ; but, as the instructions were not otherwise identified by the bill, and as the motion could not be made the vehicle of bringing them to the notice of the court without this, they were disregarded as not being a part of the record.
A general reference in the bill to a motion for new trial does not make a part of the record any motion the clerk may choose to certify to this court; but where a motion is certified to us which has been filed in the cause, and an order of court appears overruling it, the motion is sufficiently identified. Johnson v. State, 43 Ark., 391. It was necessary to overrule several decisions of this court in order to reach this degree of latitude.
A fair and liberal practice is adopted by the supreme court of the United States, in the case of Leftwitch v. Lecann, 4 Wall., 187, and is as follows : “ If a paper which is to constitute a part of a bill of exceptions, is not incorporated in the body of the bill, it must be annexed to it, or so marked by letter, number or other means of identification mentioned in the, bill, as to leave no doubt, when found in the record, that it is the one referred to in the bill of exceptions.” See, too, A. N. Railroad v. Wagner, sup.; Wells v. Railroad, 56 Iowa, 520; Tuscaloosa v. Logan, 50 Ala., 503; Powell App. Pro., p. 233, Sec. 33, a, and note.
This rule is less strict than is required by many of the cases, but if strictness to this extent be not exacted, a different paper from that intended may be inserted in the bill by mistake or design, and the question which would afterwards arise on the record be materially affected.
Tested by this rule no instructions given on the motion of the appellee are a part of the record. The clerk is merely requested to “insert instructions as given, numbering them.” How he is to determine what instructions were given is not designated. The number of the instructions is not made known, nor even the fact that they were reduced to writing and numbered. The clerk is left to determine for himself what he shall insert, and no guide is given by which an error made by him could be corrected. If the clerk should copy only a part of the charge, or commit any errors in making the copy, the injured party would be met by the objection that there was no identification of anything to correct or amend by, as was done in Johnson v. Terry, sup. In that case the bill as originally signed does not appear as in this case, and no effort was made by either party to expunge the instructions from the record. As to the practice on this point, see State v. Van Zandt, 71 Mo., sup., and Morrison v. Lehew, St. Louis Ct. App., 21 Cent. L. J., 413.
The appellant has offered to establish by affidavit here, that the instructions appearing in the bill were those given by the court. We entertain no doubt of the truthfulness of the affidavit, but it can add nothing to the record, and the necessity for it only demonstrates the wisdom of the rule requiring certainty in such matters.
The only error assigned and presented by the record is the sufficiency- of the evidence to sustain the verdict. Upon this point we entertain no doubt.
Affirm the judgment.
