Tennile v. Walshe & Co.

Tennile v. Walshe & Co. Trover. 1. Charges given or refused not revisable, unless excepted to. — Charges given or refused, and so marked by the presiding judge, though thereby made a part of the record (Code, § 3109), are not revisable by this court, unless duly excepted to. Appeal from the Circuit Court of Pike. Tried before the Hon. John P. Hubbard. P. O. Harper, for appellant. It appears from the record that the giving of the charge asked by appellee, and the refusal of the charge asked by appellant, were signed by the presiding judge and thereby became a part of the record. Code of 1876, § 3109. It is only necessary to reserve exceptions when the charge, opinion, or decision of the court would not otherwise appear of record. — Code of 1876, § 3107. M. N. Carlisle, contra. The bill of exceptions (so-called) fails to show that the matters assigned as error were excepted to, or that the charges were asked in writing. The fact that the charges were marked “refused” or “given” by the presiding judge, does not cure the defect. [MAJORITY — SOMERVILLE, J.] SOMERVILLE, J. — The record fails to show that the appellant reserved any exception to either of the rulings of the court in giving or refusing to give the several charges, which are made the basis of the assignments of error contended for by appellant’s counsel. We can not know, or assume that such exceptions were reserved, but the contrary must be presumed in support of the judgment of the court. Affirmed.