Stamm v. Coates

4 Dakota 69 | Supreme Court Of The Territory Of Dakota | 1885

Edgbrton,‘C. J.

This action was brought in the district court.for Minnehaha county, and a verdict returned by a jury for the plaintiff. The case is removed to this court upon the following exceptions by the defendant: ‘‘Assignment op error. Respondent assigns as error: (1) The court erred in not reducing his charge to the jury to writing. (2) The court erred in not giving his charge to the jury, to be taken by them in their retirement and be returned by them with their verdict. ” It appears that the instructions of the court to the jury were given orally and taken down in short hand by the court stenographer, and the charge of the court was not taken by the jury in their retirement. This was done without objection. Neither was any request made that the charge should be reduced to writing and handed to the jury., No exception of any kind was taken to this method until after the jury had returned their diet and been discharged. We are clearly of the opinion that the defendant, by sitting by and allowing the court to instruct orally, without objection, waived any right to except to this method of giving instruction, and consequently to the failure to give the charge to the jury in writing to be by them taken in their retirement.