Banks v. Hoyt

Rising, C. This case was tried to a jury, and a verdict for the defendant was returned. Plaintiff in error made an attempt to bring up the evidence, and his exceptions to the rulings of the court made on the trial in the admission of evidence over the plaintiff’s objection, by a bill of exceptions, but such bill was stricken from the files of this court. The errors assigned are based upon the rulings so attempted to be incorporated in a bill of exceptions, and upon the giving of instructions, and the refusal to give instructions. Counsel for defendants in error contend that, there being no bill of exceptions, the rulings of the court upon which error is assigned cannot be considered. It is conceded by counsel for plaintiff in error that the contention of defendant in error must prevail as to all errors assigned, except those assigned upon the giving and the refusal to give instructions. The question so raised is not an open one in this court. It has been held that objections to instructions rest upon matters dehors the record proper; and that, if the action of the trial court in giving or in refusing to give instructions is sought to be reviewed, the instructions must be incorporated into the record by a bill. Mining Co. v. Kirtley, 8 Colo. 108. The judgment should be affirmed. De Prance, C., concurs. Stallcup, C., dissents. Per Curiam. Por the reasons assigned in the foregoing opinion the judgment is affirmed. Affirmed.