Masonic Ben. Ass'n v. Lyman

BAKER, District Judge, after having made the foregoing statement, delivered the opinion of the court. The first assignment of error is that the court erred in ruling that the notice to produce record books and papers was admissible in evidence. This assignment presents no available error, because the bill of exceptions fails to show that the ruling was followed up by the introduction of the notice in evidence. This court will not indulge the presumption, because the court held the notice admissible, that the defendant in error read it in evidence to the jnry, since the record fails to show that such was the fact. Error, to be available, must be affirmatively shown by the record; and, in the absence of such showing, every intendment will be indulged in support of the judgment. Nor does the ruling of the court in excluding the several letters offered in evidence present any available error. None of these letters is set forth in the bill of exceptions. To enable this court to review the action of the court below, it is necessary that the excluded evidence should be incorporated in the bill of exceptions; otherwise, the court has no means of forming a judgment in regard to the propriety of the alleged erroneous ruling. The remaining assignments are predicated upon alleged errors in the instructions of the court to the jury. These instructions fill nearly two pages of the printed record. The exception of the plaintiff in error is as fellows: “To the giving of each and all of which instructions the defendant, by its counsel, excepted.” An exception to “each and all” of the instructions gave no information to the court in regard to what was in the mind of the excepting party, and therefore afforded no ppporfunity to correct any error committed by it. Every allegation of the declaration was traversed by a plea of the general issue, and the instructions by the court contained a number of distinct propositions of law in addition to those pointed out as erroneous. It is firmly settled that a general exception to an entire charge, which embraces several propositions .of law, is unavailing, if any part of the charge states the law correctly. Several propositions of law relevant to the facts in issue are correctly stated by the court in its charge. The whole charge is not substantially wrong, and therefore a general exception is unavailing for any purpose. Holder v. U. S., 14 Sup. Ct. 10; Lewis v. U. S., 146 U. S. 370, 13 Sup. Ct. 136; Iron Co. v. Blake, 144 U. S. 476, 12 Sup. Ct. 731; Anthony v. Railroad Co., 132 U. S. 172, 10 Sup. Ct. 53; Burton v. Ferry Co., 114 U. S. 474, 476, 5 Sup. Ct. 960; Railway Co. v. Jurey, 111 U. S. 584, 596, 4 Sup. Ct. 566; Cooper v. Schlesinger, 111 U. S. 148, 151, 4 Sup. Ct. 360; Lincoln v. Claflin, 7 Wall. 132, 139; Price v. Pankhurst, 10 U. S. App. 497, 3 C. C. A. [501] 551, 53 Fed. 312. The law on this subject, as settled by the uniform decisions of the supreme court, was embodied in a rule, and adopted for the government of the practice of this court;, as follows: “Rule 10. The judges of the circuit and district courts shall not allow any bill of exceptions which shall contain tlie charge of the court stt large to the jury in trials at common law, upon any general exception to the whole of such charge. But the party excepting shall be required to state distinctly the several matters of law in such charge to which lie excepts, and those matters of law and those only, shall be inserted in the bill of exceptions and allowed by the court.” 12 Sup. Ct. vii. It has been well said that: ‘‘This rule was designed to put an end to the practice of allowing MTs of exception like the one in this case. It matters not that the judge may be willing to consent to such a bill. He cannot waive the rule, so far as it relates to specific exceptions, if he desires to do so. The rule is not made for the judge’s personal protection or benefit, but for the proteet'on of suitors, and the advancement of justice. It is the duty of the parly excepting to call the attention of the court distinctly to the portions of the charge he excepts to, and this must be done before the case Is finally suhmi.ted to the jury, to the end that the court may have an opportunity to correct or explain the parts of the charge excepted to, if it seems proper to do so.” Trice v. Tankhurst, supra. The assignment of errors improperly sets out the entire charge. The eleventh rule of this court (12 Sup. Ct. vii.) provides, when “the error alleged is to the charge of the court, the assignment of errors shall set out the part referred to tot idem verbis;” and “when this is not done counsel will not be heard except at the request of the court, and error not assigned according to this rule will be disregarded, but this court, at its option, may notice a plain error not assigned.” This case is not one in which the court ought, upon its own motion, to notice the alleged error in the charge, even if it was thought to be a plain one. A manifest error, saved by a proper exception, might perhaps be noticed when not properly assigned; but to notice errors which have neither been saved by a proper exception, nor* properly assigned, would be a departure from sound principle, and an open disregard of the foregoing rules. It would leave the rights of suitors to be determined by the mere discretion of the court, unrestrained by any fixed principles for its control or guidance. Hardship may result in individual cases from the enforcement of these rules, but they manifestly tend to the orderly administration of justice, and a disregard of them would be productive of more injustice than is likely to result from their enforcement. For these reasons we must decline to examine the alleged errors in the charge. There is no available error presented in the record, and the judgment must be affirmed, at the cost of the plaintiff in error, and it is so ordered.