Bourland v. Board of Supervisors

Chalmers, J., delivered the opinion of the court. The record fails to show that any exception was taken in the lower court to anything there done. The instructions are marked “given” or “refused” as the case was, and as the statute requires, and are thereby made a part of the record, though the action of the court in giving or refusing them was not excepted to. A motion for a new trial was made upon the double ground [1001] that the court erred in the giving and refusing of instructions, and that tbe verdict was contrary to tbe evidence ; but no exception was taken to the action of tbe coui’tin overruling the motion. It is admitted by counsel for appellant that by reason of the failure to except to this order overruling the motion for a new trial we are precluded from looking at the testimony embodied in the bill of exceptions with a view of determining the correctness of the verdict on the facts since such is the well settled rule in this State; but it is said upon the authority of Christian v. R. R. Co., 54 Miss 503, that we may look at it for the purpose of testing the correctness of the instructions, and as these will be found to be erroneous a reversal must follow. The trouble about this view is, that the instructions were not here excepted to, as they were in the case cited. In that case the instructions, being excepted to, we were bound to pass upon them, and in doing so we held that their correctness was to be tested by the testimony which, by being embodied in a bill of exceptions, had become apart of the record. That was a case where a part of the record (to wit, the instructions, which by being marked as the statute requires had become a part of the record) was excepted to ; and in considering the exception we looked to the testimony, which by embodiment in a bill of exceptions had also become a part of the record. Here on the contrary, nothing whatever having been excepted to, there is nothing for us to take hold of or pass upon. It is insisted, however, that when an instruction is marked “ given ” or “ refused ’’and thereby made a part of the record, if the action of the court in regard to it was wrong, it will be considered as excepted to, and will be reviewed here; and in support of this view the cases of Field v. Weir, 28 Miss. 67, and Watson v. Dickens, 12 Smed. & M. 608, are relied on. There is much in the language of these cases, and especially in that of Watson v. Dickens, to give countenance to the idea, as is the case also in Mayer v. McClure, 36 Miss 397 ; but a close scrutiny of them will show that the court was discussing [1002] only the question whether an appellant, who had asked a new trial in the court below because of erroneous instructions, and had excepted to the action of the court denying the new trial, would be precluded in this court from attacking the instructions upon the ground that he had not exepted to them when given; and the question is answered in the negative. It is in this sense, and under these circumstances, that the court said in Watson v. Dickens, supra, that “ instructions asked and given or refused in the court below, and so marked by the clerk, are to be considered as excepted to without any formal bill of exceptions.” The idea is that, by being marked as required, they become as much apart of the record as any other portion of it; and, without a formal bill of exceptions, may be made the subject of attack in the court below in any method appropriate to any other matter of record. It remains true, however, that if the attack is unsuccessful in the lower court, the order of that court must be excepted to before this court can notice it. The exact question is presented and answered by the case of Scott v. The State, 31 Miss 343, where, as here, the instructions were marked by the clerk and assigned as ground of new trial in the court below ; but not having been excepted to when given, and no exception having been taken to the order overruling the motion for new trial, it was held that they could not benoticed here. Barney v. Scherling, 40 Miss. 320. Although the act making the instructions, when marked by the clerk, a part of the record has been upon our statute book for many years, there is no case which has been reversed for error in granting or refusing them when they were not excepted to at the time, and where no exception was taken to the action of the court in overruling the motion for a new trial, or in other words, where no exception was taken in the lower court to anything there done. Affirmed.