Baker v. Borello
Before: Beatty
Synopsis
Appeal—Instruction Requested by Appellants — Modification by Judge.—The right of the appellants to object to an instruction requested by them, and which was modified by the court, depends upon whether the changes made imported into it some new and distinct error prejudicial to the appellant.
Id.—Review of New Trial Order—Motion to Correct Bill of Exceptions—Jurisdiction Pending Appeal.—A bill of exceptions prepared and settled beforehand as the basis of a motion for new trial, and upon which the motion was heard and denied, and which constitutes the record upon which an appeal therefrom was taken, cannot be corrected by the superior court pending the appeal to this court upon motion of the respondent; nor will the record be amended by this court, which must review the order upon the same record upon which it was made.
BEATTY, C. J.
The defendants in this case appeal from an order denying a new trial. The respondent makes a preliminary motion to correct the record of the proceedings in the superior court. The facts are that the defendants, in support of their application for a new trial, served a draft of their proposed bill of exceptions, which showed that the trial judge, of his own motion, had given a certain instruction, numbered 18, to the giving of which they had duly excepted. The proposed bill also contained a special assignment of error upon the giving of instruction numbered 18. In this particular the bill of exceptions was settled and allowed by the trial judge, Hon. J. K.
[616]
Law, in substance as proposed by defendants, and was filed April 27, 1900. The motion for a new trial was submitted to Judge Minor on June 28th and denied on July 2d. Defendants appealed July 14th, filed the transcript in this court August 22d, and on October 11th filed and served their brief in which they presented their assignment of error upon the giving of said instruction. The attention of the respondent seems then to have been drawn for the first time to this feature of the bill of exceptions, and soon afterward, and within six months from the settlement of the bill, he commenced proceedings to amend the record so as to make it appear that the instruction of which the appellants are complaining was really given at their request, and not volunteered by the court. After considerable delay, •occasioned by a change of incumbents in the office of superior judge, an order was made by Judge Bector on January 15, 1901, correcting the bill substantially in accordance with the motion of the respondent; that is to say, it appears from the order of Judge Bector that the defendants presented the instruction to Judge Law, the trial judge, with a request that it be given, but it was not given in precisely the form in which it was requested. Before giving it Judge Law struck'out one or two words and altered one sentence slightly, but without changing its meaning or effect. The only tendency of the alterations made by him was to make the instruction somewhat less open to the objection now urged against it than it was as originally requested by the defendants. Because of this modification of the instruction by the court before giving it the appellants contend, in opposition to this motion, that the statement contained in the bill of exceptions as proposed was true, that the instruction given was not the instruction they asked, but an instruction volunteered by the court, and upon this point they cite
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