Ollam v. Shaw

Gregory, J. Suit by the appellants against the appellees for slander. The defendants answered by the general denial and by a plea of justification. The issues were tried by a jury. Verdict for the defendants. Motion for a new trial overruled and judgment. It is urged by the appellants that the court below erred in refusing to give certain special instructions asked by them, and also in refusing to propound to the jury certain interrogatories. The bill of exceptions states that one [389] ground on which the court placed its refusal was, that the instructions and interrogatories were not presented to the judge until after the argument closed, and that it was a rule of court that special instructions must be asked, and interrogatories presented, before the argument commenced. It is contended that such a rule of court is in violation of the code. We do not think so. The code provides that “when the evidence is concluded, and either party desires special instructions to be given to the jury, such instructions shall be reduced to writing, numbered and signed by the party, or his attorney, asking the same, and delivered to the court.” 2 Gr. & II., § 824, p. 199, c. 4. This statute, as we understand it, is identical with the rule of court under which the judge below acted. Indeed, without a rule of court, the statute itself requires special instructions to be delivered to the court after the evidence closes, and before the argument commences. And in the absence of a statute, or of a rule of court, it would have been a reasonable requirement, of which the appellants would have had no right to complain. It is equally important that special interrogatories propounded to a jury should be subjected to the examination of the court, and that the opposite party should have an opportunity to submit objections, and this could not be done unless a reasonable time is allowed between their delivery to the court and the retirement of the jury. An attempt is made to show by affidavit, and by the certificate of the clerk of the court below, filed in this court, that there was no such rule of court as that stated by the judge in the bill of exceptions. This is not the forum for the settlement of that question. T. J. Sample, 'for appellants. W. March and W. Brotherton, for appellees. The judgment is affirmed,, with costs.