Monroe v. Elburt , 1 Neb. 174 ( 1871 )

Lake, J.

TMs case was tried in the District Court while we Were yet a territory.

The supposed errors consist in the refusal of the court below to give certain instructions asked by the defendant, as well as those actually given to the jury upon the trial.

It is objected on the part of the defendants in error, that this court eannot consider the alleged errors for the reason that the record discloses the fact, that the bill of exceptions was not reduced to writing and signed by the presiding judge during the term at which the trial took place.

To make exceptions to the charge of the court to the jury available to the party excepting, it is necessary that the exceptions be reduced to writing, together with so much of the evidence as is necessary to explain it. Vide Code, sec. 309.

The record before us contains none of the testimony adduced upon the trial. The instructions asked may have been entirely irrelevant. If so, then, even though absti’actly considered, they may have been correct legal propositions ; it was not error to refuse to give them to the jury. Kugler v. Wiseman, 20 Ohio Reports, 361.

But we cannot consider here the exceptions taken. The case was tried by a jury on the 14th day of April, 1866, and the court closed its term on the 18th day of the same month. The bill of exceptions was settled and signed by the judge on the 6th of September following. This was in direct violation of section 308 of the Code, which provides, that “ time may be given to reduce the exceptions to writing, but not beyond the term. If not reduced to writing during the term, it must be regarded as no exception.” Kline and Berry v. Wynne, Haynes & Co., 10 Ohio State, 223.

There being no exceptions in the record which we can ■ consider, the judgment of the court below must be affirmed. '

Judgment affirmed.