Rich v. Lappin

The opinion of the court was delivered by Valentine, J.: This was an action brought before a justice of the peace of Comanche county by J. C. Lappin against H. H. Rich, to recover $60, which the plaintiff alleges he had to pay to the defendant to procure the release from the sheriff of the county of two mules in which the plaintiff had an interest, and which had been wrongfully seized by the sheriff at the instance of the defendant. After judgment in the justice’s court, and an appeal to the district court, the case was tried before the district court with a jury, and at the conclusion of the plaintiff’s evidence the defendant demurred to both the plaintiff’s bill of particulars and the evidence, upon the ground that neither disclosed facts sufficient to constitute a cause of action, which demurrer the court overruled; and then the defendant requested the court to give written instructions to the jury, which the court refused. The record upon this subject, so far as it is necessary to quote it, reads as follows: “Whereupon the defendant requested the court to give written instructions to the jury in said cause; whereupon the court delivered his instructions orally, the stenographer tak [667] ing them down and writing them out after the jury had retired, to all of which the defendant duly objected and excepted at the time.” We think the court below erred. Section 275 of the civil code, so far as it is necessary to quote it, reads as follows: “ The court shall give general instructions to the jury, which shall be in writing, and be numbered and signed by the judge, if required by either party. . . . All instructions given by the court must be signed by the judge, and filed, together with those asked for by the parties, as a part of the record.” In this connection, see the following cases: The State v. Potter, 15 Kas. 303; City of Atchison v. Jansen, 21 id. 560. There are other errors assigned, but we do not think that the court below committed any error except in refusing to give to the jury written instructions. For this error the judgment of the court below will be reversed, and the cause remanded for a new trial. All the Justices concurring.