State ex rel. Kelly v. Wentworth

Taylor, J. The relator moves this court for a writ of mandamus to compel the respondent, as circuit judge of the first circuit, to correct the bill of exceptions settled and filed in the case of Michael J. Kelly, respondent, v. William A. Phelps, appellant, now pending in this court, by striking from the same the exceptions to the instructions of the court given to the jury on the trial of that case, and the exceptions to the refusal of the said court to give certain instructions asked by the defendant. The facts disclosed on this motion show that the instructions given by the judge were in writing, as well as the instructions asked and refused; that on the day of the trial, and before such instructions were in fact filed by the clerk of the court, the defendant’s attorney received such written instructions from the hand of the circuit judge, and wrote on the margin of the instructions given and refused, their exceptions to such as appear 533 in tbe bill of exceptions as excepted to, and on the same or the next succeeding day delivered such instructions, with the exceptions so made to the same, to the clerk of said court, who indorsed the same as t£ Instructions,” and marked the same filed April 6, 1882, and that the term of said court did not expire for more than a week after the 7th day of April, 1882. The circuit judge of said court certifies that-it is the usual practice in that court to allow exceptions to instructions to be made. by noting them on the margin of the paper on which such instructions are written. That such is a common practice at the circuit court is not denied by the learned counsel for the relator. His point is that he was not bound to take notice of these exceptions, because the paper in which they were contained had not indorsed thereon the “ character ” of the paper, as required by Rule I of the rules of practice of the circuit courts. The affidavit of the learned counsel for the relator fails to deny that he had knowledge of the fact that the exceptions were noted by the counsel for the defendant on the margin of the instructions given and refused, as they appear on file in said court, previous to the adjournment of the term at which such action was tried. We must therefore infer that he had such knowledge. Regularly, the paper containing the instructions of the court, whfen it also contains the exceptions to the same, should be indorsed, as required by said rule, “ Instructions and exceptions thereto; ” but we think the omission to so indorse the same is not fatal to the exceptions, especially when the exceptions so taken are made known to the opposite party. The court might, notwithstanding the rule, allow the exceptions ; or, if necessary to the regularity of the proceedings, he might allow the indorsement to be made mme pro tuno, upon its being made to appear that such exceptions were made in good faith, and the omission to make the indorsement was a mere inadvertence. Sec. 2830, R. S. 1878. The 534 circuit judge having allowed the exceptions in the bill of exceptions, we are not at liberty to set them aside, or to direct the circuit judge to do so, upon a mere technicality which the circuit court had ample power to correct upon application therefor. By the Court.— The motion for the writ of mandamus is denied.