Hensley v. Peck

1. Bill of Exceptions. — Where all the evidence given is not preserved by bill of exceptions, the propriety of giving or refusing instructions by the Circuit Court cannot be reviewed in the Supreme Court. 2. Non-suit — Practice.—On the evening when the cause was submitted to the jury, the court, by consent, gave certain instructions; the next morning the jury returned into court and informed the court that they could not agree upon a verdict; the court then withdrew the instructions given and gave new ones — Held, that the plaintiffs had a right to take a non-suit after the new instructions were given, before the jury retired.

APPEAL SBOM ST. LOUIS COUBT OB' COMMON PLEAS. Tlie testimony in this cause haying been concluded, the only remaining question arises upon the record and the instructions and action of the court thereon. After the close of the testimony on the trial, the plaintiffs (appellants) asked the court to giye the two instructions set forth in the transcript, and the defendants consented to the giving of said instructions, and the cause was thereupon submitted to the jury for their decision, and the court adjourned till next morning. When the court met, the jury not having agreed upon their verdict., the court upon the motion of the defendants, withdrew the instructions of plaintiffs which by their, defendants’, consent had been given the day before and gave an erroneous instruction of defendants, cutting the whole case^off from the jury. Plaintiffs thereupon took a non-suit, with leave to move to set the same aside, and specified the foregoing as a reason for setting the non-suit aside and preserved the same in the bill of exceptions. How the plaintiffs, by this singular action of the court, are placed under the statute, § 33, p. 821, in a singular dilemma. This statute provides that “no plaintiff shall suffer a non-suit after the cause upon a hearing of the parties, shall have been finally submitted to a jury, or the court sitting to try the issue for their decision.” There is no doubt that the cause was finally submitted to the jury by consent of defendants upon instructions agreed to, and although the subsequent action of the court forced the plaintiffs to take a non-suit or to submit to a verdict, the question is whether the plaintiffs could legally take a non-suit under that statute. If the plaintiffs could not take a non-suit, as I am inclined to think is the case, then they are forever barred of their action by reason of the wrongful and unlawful action of Judge Blair in the premises. It seems to me that it would be but just to grant a new trial to the plaintiffs. We are injured by the wrongful act of the defendants who, having consented to submit the .case to the jury upon the plaintiffs’ instructions, as appears from the record, openly violated it the next morning, to our prejudice. 1. There is no evidence preserved by the bill of exceptions, wherefrom it can be ascertained whether any particular fact was proved, or evidence offered tending to prove any particular fact. 2. The court has power at any time before the jury has acted upon the evidence, to instruct them as to the legal effect of established facts and to inform them of the legal principles by which their decision should be guided. There is no room for supposing that this power was improperly exercised in the present case. 3. The instructions complained of were given before the cause wras finally submitted to the jury, as is evident from the fact that plaintiffs immediately took a non-suit thereupon ; and., therefore, if not shown to be erroneous per se wore not so in respect to the time when they were given.