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ant, from whose possession a horse was taken by the plaintiff pursuant to

led an answer claiming title and praying to be hence dismissed with costs;

that he, having proved title in himself, was entitled to a return of the

le and damages for its detention. 2 Bush, 117.



ARTICLE III.

TRIAL BY THE COURT.

urt, when to decide issues of fact in action for tort,
effect of such decision by.
when to state conclusions of fact found.

1]. W/ien court to decide issues of fact in action for tort *
ion for an injury to the person or character of the plain-
>arties may, with the consent of the court (£), waive a jury-
:ten consent, in person or by attorney, filed with the clerk ;
onsent in court, entered on the record,
y-trial be not demanded, or be waived (r), the court shall
issues, and make such assessments of value, damage, or
recovery, as it would have been the duty of a jury to
nd the finding of the court shall have the same effect as
ury would have had (e).

that §312 declares that "issues of fact in ordinary actions, except for
m or character, shall be tried by the court, unless a jury-trial be demanded

nt of the court "may be inferred from an entry showing that the court
and pronounced judgment thereon." Clarke v. Seaton, 18 B. M., 230.



is of the Code of 1851, which were re-enacted by \\ 342 and 361 of the Code of 1854,

11 31a and 331 of the Code of 1877, arc as follows:

" law must be tried by the court. Issues of fact, arising in actions by ordinary pro-
covery of money, or of specific real or personal property, shall be tried by a jury unless
ed.

il by jury may be waived by the parties in actions arising on contract, and, with the
t, in other actions, in the following manner :

to appear at the trial.

j consent in person, or by attorney, filed with the clerk,
nsent in open court entered on the record.



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164 TRIAL AND JUDGMENT. [TITLE 13

(c) See 14 B. M., 521, and 15 Id., 70, as to what was a waiver of a jury-trial und<
ie Code of 1854. Under §312 of the present Code, failure to demand a jury-trial is
'aiver of the right thereto, except in actions for injuries to person or character; an
331 prescribes the mode in which the waiver may be made in such actions.

(d) See J 126 as to allegations of value or damage which must be proved though n<
raversed; and §379 as to assessment of damages, &c, upon a failure to plead, or after
ecision of an issue of law.

(e) 1. The court has the same right to find the value of work and labor in the absenc
f evidence, as a jury would have (as to which see note {a) 3 to §326). 3 Met., 129.

2. A motion and grounds for a new trial are necessary in order to obtain a review I
le Court of Appeals of any alleged error during the progress of the trial {Helm v. Coffr
Ky., 176, overruling Union Ins. Co. v. Groom, 4 Bush, 289) ; and a party who fai
>r three days to make such motion, with grounds therefor, can not complain of error i
dmitting testimony, &c. Henderson v. Dupree, 82 Ky., 678.

3. The finding of the court upon the facts stands on the same footing, as to the ev
ence necessary to support it, as the verdict of a jury. Mul hoi land &* Bros. v. Samuel

Bush, 66; Coleman's ex'r v. Meade, 13 Id., 358.

§ 332 [362]. When court to state conclusions of facts found. — Upo
rials of questions of fact by the court, it shall not be necessary for th
ourt to state its finding, except, generally, for the plaintiff or defendant
inless one of the parties request it, with the view of excepting to th
[ecision of the court upon the questions of law involved in the trial
n which case the court shall state in writing the conclusions of fac
Dund, separately from the conclusions of law.

1. This section does not relate to trials of provisional remedies. 84 Ay., 27.

2. See note (a) to % 340.

ARTICLE IV.

EXCEPTIONS.

i 333- What is an exception, and how taken.

i 334« When to be taken.

i 335i 337* Mode of taking, and preparing bill of exceptions.

\ 336. How exception to be taken to decision, of record.

§ 338. Error disregarded unless prejudicial to substantial rights.

i 339- How judge to certify bill of exceptions.

§ 333 [363]. What is an exception, and how taken. — i. An exceptio
5 an objection taken to a decision of the court upon a matter of law {a

2. A party may, without a previous objection, except to a decisio
gainst him, unless it be made at the instance of the adverse party.

3. But a party can not except to a decision made at the instance o
he adverse party, unless objection shall have been made to the motior
>ffer, or request, of the adverse party (b).

{a) i. When an exception is necessary.

No exception need be taken to a void order (8 Bush, 480) ; or to a final order upon a
»sue of law or fact; as, a judgment against the defendant upon sustaining a demurrer 1
is answer {Coffmtn v. Wilson, 2 Met., 542) or a peremptory instruction to the jury to fir



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EXCEPTIONS. 265

Loving v. Warren County, 14 Bush, 316. As to what are final orders in
to i 734.
nrderto avail himself of an error in a preliminary decision ; as, in giving
ions to the jury (2 Met., 538, 558; 3 Id., 577; 83 Ky., 386), or in
ling evidence (I Met., 450; 3 Id., 42); or in overruling a demurrer
)tion to require verification of a pleading (4 Met., 256), must except to

L OF EXCEPTIONS IS NECESSARY.

on for a new trial nor a bill of exceptions is necessary, even in a case
lable the unsuccessful party to maintain an appeal. Hatper v. Harper,
only office of a motion for a new trial and a bill of exceptions is to
>rd, for review, matters which would not otherwise appear in it."
Mutual Life Itts. Co., 78 Ky., 533.

exceptions is not necessary in order to show to the Court of Appeals
1; as, the pleadings in an action and orders of court (10 Bush, 451);
' trial and the grounds therefor (78 Ky., 535-36) ; a notice, filed in

be made therein (78 Ky., 535) ; depositions in a chancery-case and
(12 Bush, 473-74; Collins v. Richart, 14 Id., 621) ; writings on which

ims, set-offs, and cross-petitions are founded (§ 120; 1 Met., 430;
ibits in an equitable action unless the record show that they were not
d in an ordinary action if the record show that they were used on the
n order rejecting an amended pleading does not make it a part of the
\x copied in the record and certified by the clerk as an amendment

reference to it in an order rejecting it, or any other order recognizing
d to be filed ; and which is not embodied in a bill of exceptions, making
■d, can not be noticed by the Court of Appeals. Hortsman v. Lex. 6*
\f., 223 ; and in Young, McDowell <5r* Co. v. Bennett, &*c, 7 Bush, 476,
>ied in the transcript a paper which Ke designated an amended petition,

is true, the clerk has copied a paper which he designates as such
is not identified by a bill of exceptions, nor by any order of the court,
lat the amended petition was not allowed to be filed ; it remained,
private paper in the hands of appellants;" and the appellants having

1 amendments of their answer, which were rejected, the court said :
;he court to allow the several amendments to be filed the appellants
heir motion/ as each of the orders recites, said amendment is made

What purport to be copies of these amendments are contained in the
; but they are not identified either by the orders of the court rejecting
ficate of the clerk as the papers tendered and rejected, and are not
11 of exceptions, and can not be considered as constituting any part
; court." Nolan v. Feltman, 12 Bush, 121.

ugh, as a general rule, the Court of Appeals, if there be no bill of
the evidence and the instructions to the jury, will presume that the
selow was right (1 Met., 395); it is otherwise, if the pleadings or the
ow that the court below erred to the prejudice of the appellant.
Louisville City R. Co., 10 Bush, 231 ; McAlister v. Conn. Mutual Life
I.

>tion be taken, there can not be a bill of exceptions ; and a deposition,
y be regarded as part of the record, without being made so by a bill
ush, 170.

vail himself of error in rejecting a deposition, upon exceptions, should
is bill of exceptions, together with the grounds upon which it was
s68.



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l66 TRIAL AND JUDGMENT. [TIT1



(b) When objection, before excepting, is necessary.

This provision conforms to what was regarded as settled law under the Code of
see 2 Met., 540; I Duv., 388; 7 Bush, 169; Id., 641), prior to the decision in Pos
faith's ex'r, 8 Bush, 589; in which it was held that the defendant's exception I
iving of instructions, on the plaintiff's motion, was available, though the defendan
ot objected to the motion therefor. The rule is now settled according to the ft
ractice. Loving v. Warren County \ 14 Busk, 316; 81 A>., 51, 52.

§ 334 [364]. When exception to be taken. — The party objecting 1
xcept when the decision is made ; and time may be given to prep;
>ill of exceptions, but not beyond a day in the succeeding term, t
ixed by the court. [" If the judge of said court, for any cause, does
^reside at the said term of the court, or no court is held, then the p
offering the bill of exceptions shall have until the next term of the c
o perfect and prepare the bill of exceptions.' ' Act May 12, 1886.

As to courts of continuous session, see Act Dec. 30, 1892, } ^, in Appendix, infr

1. Time of taking exception.

Exception must be taken when the decision is rendered, notwithstanding a n
ourt to the contrary. Kennedy v. Cunningham, 2 Met., 538.

But, where the bill of exceptions showed that defendant's objection to a questio
>verruled, and then stated the testimony of the witness, which was followed by the
nent, " to all which the defendant excepted ;" it was held that it sufficiently appears
he ruling was excepted to when made. L. & N. R. Co. v. Riser's adm'r, 85 Ky., 36

2. HOW BILL OF EXCEPTIONS TO BE FILED.

A bill of exceptions can not be Bled in vacation, nor out of court {Freeman v.
\am, 17 B. M., 603; Allard v. Smith, 2 Met., 298; Corley's ex'r v. Evans and u
Hush, 409) ; though an order of court may have been made allowing it {Allard x. :
i Met., 298); unless the order was made by consent of parties entered of record.
\ Ellis, 10 B. M., tf.

3. Time of filing bill of exceptions.

(1) The time for filing a bill of exceptions, or for obtaining an extension of tii
eckoned from the overruling of a motion for a new trial, and the court has no p
whilst such motion is pending, to prescribe the time for filing such bill. Harper v. H
Bush, 447.

(2) A bill of exceptions will not be regarded by the Court of Appeals unless it b<
r tendered on the day fixed by the law ; or on or before the day fixed by the court,
ime be extended ; and the extension must be made by an order of record. Freem
Hrenham, 17 B. A/., 603; Tweedy v. Commonwealth, 2 Met., 378; Vandever v. Gnfi
r d., 425 ; Meadows v. Campbell, I Bush, 104; Bailey \. Villier, 6 Id., 27; Lynch v. Rey
\ Id., 547; Seatt v. Burrows, 13 Id., 450; Meaux v. Meaux, 81 Ky % , 475; L. &* a
?o. v. Turner, Id., 489.

(3) Time was given until the third day of the next term to file a bill of excep
ind on that day further time was given, without designating a day: held, that the
>rder was void, and that the bill of exceptions filed was no part of the record. Sm
Blakeman, 8 Bush, 479.

(4) The right of a party to object to a bill of exceptions, because it is not tendei
>roper time, is not waived by reason of assistance given by his counsel out of court i
reparation of the bill. Smith v. Blakeman, 8 Bush, 480.

But, according to Downing v. Bacon & Co., 7 Bush, 680, though an order exte
ime be erroneous ; yet, if both parties be present when it is made and when the 1



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EXCEPTIONS. 267

the order, and no objection be made, nor exception taken, the objection
> having been waived.

f appellee before the time allowed for filing a bill of exceptions will
>pellant, if his bill be tendered within the time allowed, although there
evivor. Hayden v. Ortkeiss* adm'r, 83 JCy, t 396.

Statement of evidence in bill of exceptions. — 1. No par-
exception, or bill of exceptions, is required. A party
pt as hereinafter provided, state the evidence, but must
al facts which the evidence conduced to prove (a) ; and,

1 be to a decision admitting or excluding testimony, or
neaning or effect, so much of the evidence as is neces-
the exception, and no more, shall be stated (b).

dge refuse to sign the bill of exceptions, as presented ;
wish to appeal upon the ground that the verdict is not
le evidence, it shall be stated in full, and the bill of
►resented to the judge (c).

number of instruments of substantially the same char-
pon a trial it shall be sufficient to furnish a copy of one
bill of exceptions, accompanied by a statement showing
to the others, and how many such others were used on
uch copy and statement shall have the same effect as if
uments had been copied in the bill of exceptions.

Id practice, as a general rule, a party, to avail himself of an error as
s bound to state the whole evidence in his bill of exceptions (2

Vandever v. Griffith, 2 Met., 425, that was said to be necessary uifder '
[365 of which declared that "the exception must be stated, with so
ce as is necessary to explain it, and no more, and the whole as briefly
ew of Vandever v. Griffith, this Code declares that a party, to avail him-
11 must not state the evidence, . . . but must state the material
Idence conduced to prove." But, according to Beaven v. Phillips, 83
ion is not complied with by a statement that " the evidence in the case
conduced to show the facts respectively claimed by the parties in the
ms, however, that there may be cases to which the maxim id certum est
ftest ought to apply.

on against a master for failing to teach his apprentice, W, " the art
tanning business," as the defendant had covenanted to do, the defend-
snants performed ; " and the court, notwithstanding his objection,
f to ask a witness whether W was a good workman in currying leather,
ppeals said : "It might be a sufficient answer to this objection, that the
>es not show what proof had been given when the question was asked ;
ble for us to say the court erred in permitting it to be answered, even
think it improper as original proof on the part of the plaintiff."

2 Dana, 129.

being as to the competency of a witness, the court said: "The code
s that the party objecting to a decision of the court must state the
nuch of the evidence as is necessary to explain it, and no more. \ 365.
this case, and if there were any other evidence introduced bearing on



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268 TRIAL AND JUDGMENT. [TITU

the question, the other party should have seen that it was also stated in the record,
as a statement was made of the evidence upon which the decision was based, the presi
tion is that it contains all the evidence that was necessary to explain the objection,
•enable the court to decide the question which was before it." 18 B, M. % 94.

3. If an ordinary action be brought and prosecuted as an action in equity, it wil
treated by the Court of Appeals as an ordinary action, " with the single exception"
the court " will treat the evidence copied and certified by the clerk as part of the rec
without a bill of exceptions." 12 Bush, 473.

But, as a general rule, depositions read in an ordinary action can not be considere
the Court of Appeals, unless they be embraced in a bill of exceptions or identified b
order of court, identification by the clerk being insufficient (86 Ky., 297) ; and, if the
excluded, the party complaining should incorporate them in his bill of exception]
describe them and make them a part thereof as certainly as if they had been copied ;
should also state in the bill of exceptions the objections to the depositions and thegro
upon which they were excluded. I Bush, 268.

4. The overruling of an objection to evidence can not be assigned for error, if
Tecord show that the evidence was not read to the jury. 6 Mon., 53.

5. Sustaining objection to a question can not be assigned for error, unless the bil
•exceptions show what answer was expected from the witness. 3 Met., 313; 9 Busk,

IO Id., 298; II Id., 580; 81 Ky., 627.

(c) 1. Although it is usual and best to close a bill of exceptions, prepared in view of
section 2, with the words "and this was all the evidence" (see §339); this is not m
sary if the bill otherwise show that it states all the evidence. Thus, in Bracken Co
Court v. Robertson County Court, 6 Bush,. 7 4, the court said: "Although the bill of en
tions is inartificial, yet it does show the plaintiff's evidence, the agreed facts,
defendant's evidence, and then concludes, « the court, having heard the evidence, adjudg
from all of which it is most apparent that it contains all the evidence ; " and in Gam
Batliff, 83 Ky., 387, the court said: "The bill showing that the plaintiff introduced
testimony, or the following testimony, and then the defendant introduced his testimon
- -examined the following witnesses, the presumption is that the bill contains all the
dence."

2. A stenographer's report of evidence must be identified by the judge's certificat
part of the bill of exceptions : a statement in the bill of exceptions that the parties ii
■duced certain named witnesses, "who testified to the jury as hereinafter set out in
stenographer's report hereto attached" was held to be insufficient, no such report b
attached to the bill, and the report, which was taken to the Court of Appeals on cctio
having nothing in it or upon it to identify it as the report referred to by the judg
attached to the bill of exceptions. 78 Ky., 536.

§ 336 [366]. Exceptions to decisions of record. — If the decision objec
to be entered on the record, and the grounds of objection appear in
entry, the exception may be taken by the party causing to be noted
the end of the decision, that he excepts.

§ 337 [367]. Taking other exceptions — bills of exceptions. — I. If
decision be not entered on the record (a), or the grounds of objec
do not appear in the entry, the party must prepare his bill of excepti
and present it to the judge for his signature.

2. Exceptions taken during the trial need not be noted of rec<
nor reduced to writing, unless by order of court, until after the ti
f During the term at which the judgment becomes final (&). Act 1



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EXCEPTIONS. 269

* The party excepting shall, unless further time be given
s bill of exceptions, which shall include all the decisions
cepted to, in consecutive order (c) ; and, if he except to
e court in granting or refusing any instruction, all the
sn and refused shall be also included {d).
1 of exceptions be approved by the judge, he shall sign
>e filed as part of the record, but not spread at large on
If not approved, he shall correct it, or suggest the
\ made, and sign it. A party objecting to the judge's

exception which purports to state the evidence (r) may,
1 after .the bill is signed, file the exception, as written by
1 be attested by the affidavits of two bystanders ; but its
introverted and maintained by other affidavits filed in
2, not exceeding five on either side,
s controverting an exception not signed by the judge

the clerk's office, and notice of the filing given, within
r the filing of such exceptions ; and affidavits sustaining
must be filed within fifteen days after such notice,
dge who presided at the trial do not preside when a
w trial is overruled, the bill of exceptions may be certi-
ers(/), and be controverted and maintained, pursuant
s of subsections 3 and 4 of this section.

s of record, see note (a) 2 to \ 333.

were substituted for the words "at the close of the trial," in the Code
e held to mean "some time during the day on which the trial termi-
ent becomes final." 13 Bush, 452.

judge certifies as to his own rulings and exceptions taken during the
1, we know of no practice that authorizes his statement, or the verity
de up, to be assailed either by by-standers or the affidavits of parties
tigation." Garrott v. Ratliff^ 83 Ky, % 389; ace, Patterson v. Common-

-25.

ing instructions pari of the record.

ns found in the record are not embraced by any bill of exceptions, nor

n what instructions, if any, were given or refused by the court. The

ned of, therefore, constitute no part of the record." Meador v. Turpin %

mid be identified by making them part of the record by an order of
Id be embodied in the bill of exceptions signed by the judge. The
elude them in the bill of exceptions." Forest v. Crenshaw, 81 Ky. y 52.
mode of making up bills of exception is by the direction, here insert
or instructions a, b, h t or instructions in the handwriting of the court
e clerk can identify them ; and when copied into the bill of evidence,
he bill is complete and the instructions a part of the record ; or, when
b insertion of the instructions without identifying them, and the clerk

aid act, declaring that it should apply to appeals then pending, was held to be
Cr, 186.



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yO TRIAL AND JUDGMENT. [TITL

iserts the instructions, thereby making the bill complete, this court will not gram
rit of subpoena duces tecum, that the original bill may be inspected, unless there i
fidavit that the instructions embodied in the bill were not those offered, given, or rei
y the court on the trial ; and so with reference to any exhibit made part of the bi
ridence." Meaux v. Meaux, 8l Ky., 478; Garrott v. Ratliff, 83 Id,, 390.

2. As to showing that the bill of exceptions contains ALL the instructions.

It was held that a bill of exceptions which stated that the court, on motion oi
itorney for the Commonwealth, gave " the following instructions," which were set
id that then, on motion of the defendant, the court gave "the following instructic
hich were set out, did not show that the bill contained all the instructions. Ch
ommonwealth, 3 Met., 10; Jane v. Commonwealth, $ Id., 18.

But in Micky v. Commonwealth, 9 Bush, 594, it was held that statements in a bii
cceptions, that the court, on motion of the Commonwealth's attorney "instructed
lry as follows," and "instructed the jury as follows," on motion of the defendant-
istructions being set out — were sufficient to show that the bill contained all the ins
ons; for, "if either of the instructions given was omitted, then the statement tha
iiry was instructed as follows* is not true.!'

And in Garrott v. Ratliff, 83 Ky., 384, the court said : "A positive or direct statei
t a bill of exceptions that it contains all the evidence or all the instructions giv<
(fused, is not essential to make the bill complete. . . . When it appears from
ill that instructions were given by the court on its own motion, or for the plaintiff
len for the defendant, or at the instance of the one party or the other, and then ins
ons by the court, the bill, so far as the instructions are concerned, will be regarde
>mplete, unless it appears on the face of the record that other instructions were give
ifused. . . . Cases [probably alluding to the cases of Clem and Jane against the (
ton wealth] can be found where bills of exceptions have been excluded on extra
tchnical grounds by adhering to the very letter of the Code, when the court, too, 1
a inspection of the record, must have been satisfied that the bill was complete. 1
ecisions proceeded upon the idea that it must affirmatively appear that the bill conta
11 the evidence or all the instructions, when the signature of the trial court, when
icord failed to show any omission of the evidence or instructions, was all that sh
ave been required." Ace. L. & N. R. Co. v. Finley, 86 Ky., 297.

(e) By-standers are not authorized by this provision to certify as to any thing e>
le evidence (83 Ky., 389; 86 Id., 324-25): aliter, if the judge who presided at
ial do not preside when the motion for a new trial is overruled (§337, subs. 5) ;
ich judge, having overruled a motion for a new trial and extended the time for fili
ill of exceptions, do not preside when it ought to be filed. Hayden v. Ortkeiss* ac
3 Ky., 396.

(/) See next preceding note.

§ 338 [368]. Exception must relate to substantial rights, — No excepl
hall be regarded, unless the decision to which it relates be prejudi
j the substantial rights of the party excepting. .

See note (e) to \ 134, and note to §756.

§ 339. How judge to certify bill of exceptions. — In cases in which,
ubsection 2 of § 335, the evidence is required to be stated in full,



Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 39 of 142)