Norton v. Dorsey

Henry, J.

1. practice, civil.Hons.

After the jury retired to consider of their verdict, the judge, who presided at the trial, “ called the jury into the court room, a little after dark in the evening, and in the absence of the parties and their attorneys, and all other persons being excluded from the court room except the deputy sheriff,” gave to the jury additional instructions, which are embodied in the bill of exceptions. This question was before us at the present term, in the case of The State v. Alexander, and we held that such conduct on the part of the court, was a sufficient ground for reversing its judgment. The court should never, even in open court, in the absence of the parties and their attorneys, when it is practicable to have them present, give additional instructions or modify those already given. No reason is shown,-why in this instance, it was done in their absence, and the fact stated in the bill of exceptions, that all persons except the deputy sheriff' were excluded from the court room, excites suspicion, which, in its conduct, the court should be careful to pre vent from attaching to its proceedings.

2 bill op excepJudg? toefsUign: Itlndera.b7 by’

The judge refused to sign the bill of exceptions, which contains the above statement, for the reason that the evidence of C. J. Workizer, a witness, was not correctly sfafe(l> and that the facts, as to the giving of instructions by the court of its own motion, were not correctly stated. The bill of exceptions was signed by three bystanders, as the law directs in such case, and the court permitted it to be-filed, and as Sec. 31, Art. 9, of the act regulating practice, provides that “'every bill signed by the judge or by the bystanders and filed in court, shall form a part of the recor'd of the cause in which it is filed,” we are bound to assume the statement contained in the bill of exceptions to be true. It is strange that the court permitted the filing of the bill *378 of exceptions after certifying that it was untrue. Yet the fact that he did, appears of record, and while we might suppose that his certificate of the untruth of the bill of exceptions was intended as a refusal to let it be filed, our supposition and conjecture must yield to the distinct statement in the record, that it was filed.

3. —;

No affidavits are filed either in support of or in opposition to the bill of exceptions, nor does the law seem to affidavits, authorize affidavits, except in the event that the court refuses to permit it to be filed. If the court refuse to permit the filing of the bill of exceptions, the truth of the bill shall be tried by affidavits, as is provided in Sec. 82, page 1044, Wag. Stat. The judgment which' was for the plaintiff, with the concurrence of all the judges, is reversed and the cause remanded.

Reversed.