Hensley v. Peck

RYLAHD, J. In this case there is no bill of exceptions properly taken, saving all the evidence given in the court below; therefore, as to the proper or improper instructions given or refused, this court can form no opinion — the evidence is not preserved. The making out the testimony from the notes of the reporter months after they were taken, instead of being made out in full and submitted to the counsel and court immediately, if neces’-sary for insertion in the bill of exceptions, will not be sanctioned by this court [415] There is nothing, then, for this court to adjudicate upon, except the fact of the court, giving by consent instructions to the jury on the evening when the cause was submitted to them, and when the jury next morning informed the court they could not agree in their verdict, the court, on motion, withdrew these instructions and gave others. We cannot see that the instructions which the court first gave to the jury were correct or not, not having the evidence before us ; nor can we see whether the instruction last given, after the first were withdrawn, is correct or incorrect. The act complained of is the withdrawing those already once given, and giving new and different ones. We cannot see that the court acted indiscreetly or illegally in all this. The first instructions given may have been wrong. It will surely then not be complained of that the court corrected this error before any injury arose to either party by withdrawing the instructions, and giving correct and proper ones. We confess that such practice is rather strange, at least it is not common in this State. I have known additional instructions given to a jury after they had returned into court, not agreeing in their verdict, but this was at the .request of the jury themselves. However, I am unwilling to presume the court did wrong; there may have been a necessity for thii course in order to do justice between the paities. It seems the plaintiffs think their case was finally submitted to the jury the evening of their retiring from the bar ; that may be so, but still I am inclined to believe that whenever the jury returned into court and received new instructions, the first having been withdrawn, that any time after this new instruction was given, before the jury retired, that the plaintiffs had the right to take a non-suit.(a) In this case they took-such non-suit, and I am willing that they should have every benefit arising from it. Judgment of the court below is affirmed. Footnotes [a] (a) Templeton v. Wolff, 19 Mo. R. 101; Lawrence v. Shreve, 20 Mo. R. 492; Nordmanser v. Hitchcock, 40 Mo. R. 183; Fink v. Bruihl, 47 Mo. R. 470.